United States v. Simpson ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4687
PETER SIMPSON, a/k/a Peter Pillings,
a/k/a Clarence Floyd, a/k/a
Diamond,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Robert Earl Maxwell, Senior District Judge.
(CR-95-5)
Submitted: July 8, 1997
Decided: July 23, 1997
Before HALL, HAMILTON, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Brian J. Murphy, Baltimore, Maryland, for Appellant. William D.
Wilmoth, United States Attorney, Thomas O. Mucklow, Assistant
United States Attorney, Wheeling, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Peter Simpson appeals from a jury verdict convicting him of all
eleven counts of an indictment charging him with one count of con-
spiracy to possess with intent to distribute and to distribute crack in
violation of 21 U.S.C. § 846 (1994), four counts of distribution of
crack in violation of 21 U.S.C. § 841(a)(1) (1994), five counts of trav-
eling and causing individuals to travel in interstate commerce to facil-
itate his crack cocaine enterprise in violation of 18 U.S.C.
§ 1952(a)(3) (1994), and one count of aiding and abetting the mainte-
nance of a crack house in violation of 21 U.S.C.§ 856 (1994). The
district court sentenced Simpson to fifty years on the conspiracy
count, twenty years on each of the distribution counts and for aiding
and abetting the maintenance of a crack house, and five years on each
count of traveling in interstate commerce, all to run concurrent to
each other and to the conspiracy count.
On appeal, Simpson argues that the district court erred in denying
his motion for acquittal seeking dismissal of certain counts of the
indictment as multiplicitous and by imposing a two-level enhance-
ment for possession of a firearm under United States Sentencing
Commission, Guidelines Manual, § 2D1.1(b)(1) (Nov. 1996). Finding
no reversible error, we affirm.
Simpson contends that the district court erred by refusing to dis-
miss various counts of the indictment in denying his motion for
acquittal. He argues that the interstate travel counts subsume the crack
house operation and distribution charges because proof of those acts
are necessary to prove the interstate travel charges. Simpson also
makes temporal challenges to four of the distribution counts because
they charge conduct alleged in other charges. During the trial pro-
ceedings, Simpson submitted an oral Fed. R. Crim. P. 29(a) motion.
The district court denied it. After the conviction on all counts by the
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jury, Simpson submitted a Fed. R. Crim. P. 29(c) motion. Both Rule
29 motions challenged the multiplicity of the counts of the indict-
ment.
All defenses and objections based upon defects in the indictment
must be raised prior to trial. See Fed. R. Crim. P. 12(b). Failure to
raise such objections prior to trial constitutes a waiver of those issues
except for good cause shown. See Fed. R. Crim. P. 12(f). Simpson's
challenge of the multiple count indictment on multiplicity grounds is
waived by a failure to raise the issue below prior to trial. See United
States v. Price, 763 F.2d 640, 643 (4th Cir. 1985). We therefore
decline to reach the issue, as Simpson failed to raise it in a timely
manner.
The second issue Simpson raises is that the district court erred by
imposing a two-level sentencing enhancement for possessing a fire-
arm during the commission of the offense. Simpson argues that the
district court improperly relied upon grand jury testimony that was
not in the record in finding that a gun found in his New York apart-
ment was connected to the offense of conviction.
The presentence report (PSR) recommended that a two-level
enhancement was warranted under USSG § 2D1.1(b)(1). The proba-
tion officer found that Simpson used two members of his crack distri-
bution network, Charles Cox and Debbie Floyd, to purchase firearms
on his behalf. Simpson objected to the findings by the probation offi-
cer and the district court thoroughly reviewed the objection to the
enhancement at the sentencing hearing.
At the sentencing hearing the Government offered the testimony of
the investigating Federal Bureau of Investigation case agent, J.C. Raf-
fety, as factual support for the enhancement. Agent Raffety testified
that Debbie Floyd revealed to him during an interview that she had
been involved in purchasing firearms at the request of Simpson and
that it was her understanding that the money to pay for the purchase
on at least one occasion came from proceeds from the sale of drugs.
Agent Raffety testified that he also discussed the firearm purchases
with Charles Cox. Cox told Raffety that he had purchased several
firearms for Simpson. Raffety was able to trace one such purchase by
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Cox of a Glock 19 firearm from a West Virginia pawn shop to a fire-
arm recovered in New York when Simpson was arrested.
The district court stated that it was imposing the enhancement
based upon Agent Raffety's testimony and the grand jury testimony
of Charles Cox. Neither the Government nor the Defendant entered
the transcript of the grand jury proceedings as an exhibit.
The district court's factual findings are reviewed under the clearly
erroneous standard, while its interpretation of guideline terms is
reviewed de novo. See United States v. Daughtrey , 874 F.2d 213, 217
(4th Cir. 1989).
We find that the district court's factual finding that Simpson pos-
sessed firearms in relation to the conspiracy charge is not clearly erro-
neous. Agent Raffety's testimony alone is enough to support the
district court's conclusion. In addition, the district court is permitted
to consider any relevant information regardless of whether the evi-
dence would be admissible under the Federal Rules of Evidence. See
USSG § 6A1.3(a); United States v. Roberts , 881 F.2d 95, 106 (4th
Cir. 1989).
We deny the Government's motions to supplement the record and
file a supplemental appendix including the grand jury testimony
because the supplemental information is not necessary to decide this
case. We dispense with oral argument because the facts and legal con-
tentions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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