United States v. Gardner

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4230
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEMETRIUS TYRONE GARDNER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief
District Judge. (1:07-cr-00028-jpj-pms-1)
Submitted: January 23, 2009 Decided: February 27, 2009
Before WILKINSON, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Daniel R. Bieger, COPELAND & BIEGER, P.C., Abingdon, Virginia,
for Appellant. Julie C. Dudley, Acting United States Attorney,
Zachary T. Lee, Assistant United States Attorney, Abingdon,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Demetrius Tyrone Gardner appeals his jury conviction
and sentence on charges of conspiracy to distribute cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1) (2006) (Count One);
and knowingly making a material false declaration under oath, in
violation of 18 U.S.C. § 1623 (2006) (Counts Three and Four).
The district court sentenced Gardner to a total of 360 months’
imprisonment and ten years’ total supervised release. On
appeal, Gardner challenges the district court’s admission of
evidence of prior bad acts, and the sufficiency of the evidence
used to convict him. We affirm.
Gardner’s first claim of error is that the district
court erred in denying his motion in limine seeking to prevent
the Government from introducing evidence of Gardner’s
convictions for drug-related offenses in 1999 and 2000, under
Fed. R. Evid. 404(b) and 403. Gardner claims the evidence was
not relevant to whether he engaged in the charged drug
conspiracy between August and October 2006, and that the
prejudicial effect of the evidence far outweighed its probative
value.
We give great deference to the trial court’s rulings
on the relevancy and admissibility of evidence, and will not
disturb such rulings on appeal absent a clear abuse of
discretion. United States v. Whittington, 26 F.3d 456, 465 (4th
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Cir. 1994). We will not find an abuse of the district court’s
discretion in the admission of Fed. R. Evid. 404(b) evidence
absent a showing of arbitrariness or irrationality. United
States v. Haney, 914 F.2d 602, 607 (4th Cir. 1990). Evidence is
admissible pursuant to Rule 404(b) if it is “(1) relevant to an
issue other than character, (2) necessary, and (3) reliable.”
United States v. Sanchez, 118 F.3d 192, 195 (4th Cir. 1997)
(quoting United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir.
1988)).
We find no abuse of the district court’s discretion in
the admission of Gardner’s prior crimes. A not-guilty plea
places a defendant’s intent at issue, and evidence of similar
prior crimes can therefore be relevant to prove intent to commit
the crime charged. See Sanchez, 118 F.3d at 196. Prior
convictions for narcotics offenses and evidence of prior arrests
for narcotics offenses is an accepted means of establishing
intent, knowledge of the drug trade, and intent to distribute.
Id. at 196-97. See also United States v. Hodge, 354 F.3d 305,
311-12 (4th Cir. 2004); United States v. Mark, 943 F.2d 444, 448
(4th Cir. 1991). Here, the challenged evidence was probative of
Gardner’s knowledge and intent as it related to the charge of
conspiracy to possess with the intent to distribute and
distribute cocaine base. In addition, his prior convictions
were probative of his knowledge of the drug trade and refute any
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contention that he was an innocent bystander with regard to the
October 23, 2006, transaction, or in his numerous dealings with
Norman, or that he committed the acts charged by accident or
mistake.
Nor was the probative value of the evidence of prior
bad acts outweighed by the potential prejudice. See Fed. R.
Evid. 403. The challenged evidence was not lurid, inflammatory,
nor would it tend to cause the jury to decide the case in an
irrational manner. Moreover, the limiting instruction given to
the jury in this case was adequate such that the jury would not
rely improperly on the prior bad act evidence. See generally
Mark, 943 F.2d at 449; United States v. Masters, 622 F.2d 83, 87
(4th Cir. 1980).
Gardner’s final claim of error is that the evidence
was insufficient to convict him of the drug distribution
conspiracy charged in Count One of the indictment, or of making
false statements as charged in Counts Three and Four. In
evaluating the sufficiency of the evidence supporting a criminal
conviction on direct review, “[t]he verdict of the jury must be
sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it.” Glasser v. United
States, 315 U.S. 60, 80 (1942). Substantial evidence is
evidence “that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
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guilt beyond a reasonable doubt.” United States v. Burgos, 94
F.3d 849, 862 (4th Cir. 1996) (en banc). We consider
circumstantial and direct evidence, and allow the Government the
benefit of all reasonable inferences from the facts proven to
those sought to be established. Id. at 858; United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). In evaluating
the sufficiency of the evidence, this Court does not review “the
credibility of the witnesses and assume[s] that the jury
resolved all contradictions in the testimony in favor of the
government.” United States v. Foster, 507 F.3d 233, 245 (4th
Cir. 2007), cert. denied, 128 S. Ct. 1690 (2008); United States
v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002). Our review of the
record discloses sufficient evidence presented at Gardner’s
trial to support the jury’s findings. *
The record reflects that the Government presented
evidence that Gardner was involved in a drug transaction with a
confidential informant of the Bristol Virginia Police Department
on October 23, 2006. The confidential informant, fitted with
audio and video recording capabilities, arranged a transaction
*
As Gardner did not move for judgment of acquittal pursuant
to Fed. R. Crim. P. 29, we review for plain error his claim of
insufficiency of the evidence, to determine whether or not
“manifest injustice” occurred. United States v. Wallace, 515
F.3d 327, 332 n.5 (4th Cir. 2008)(citing Lockhart v. United
States, 183 F.2d 265 (4th Cir. 1950)).
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involving crack cocaine with an individual she knew as “Ty,” who
was identified as Gardner. A recorded telephone call was placed
to Gardner, the meeting was set up, and the informant approached
a vehicle in which Gardner was a passenger. The confidential
informant gave the female driver $150, and Gardner then handed a
piece of crack cocaine to the driver, who then handed the crack
cocaine to the informant.
Following his arrest, Gardner was interviewed by Drug
Enforcement Administration Agent Brian Snedeker. During that
interview, Gardner confessed to Agent Snedeker that he had been
assisting Alonzo Norman in the distribution of crack cocaine for
a period of approximately three months. Agent Snedeker
testified that Gardner told him that Gardener would find
customers for Norman that were willing to purchase an ounce of
crack cocaine. After completion of the deal, Norman would give
Gardner $200. Gardner further stated that Norman was selling
one ounce of crack cocaine for $1000, and that the transactions
occurred approximately five to six times a week and at different
locations in Bristol, Virginia and in Bristol, Tennessee.
Gardner identified five to six one ounce transactions occurring
at a barbershop in Bristol, Virginia. Based on Gardner’s
statements to him, Agent Snedeker calculated that Gardner had
assisted in the distribution of 1275 grams of crack cocaine.
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Following his statements to Agent Snedeker, Gardner
agreed to attempt to set up a drug deal with Alonzo Norman, and
placed a number of recorded phone calls to Norman for that
purpose. However, no deal was accomplished. Phone records
introduced at trial corroborated Gardner’s confession, and
revealed that numerous phone calls had been made from Gardner’s
cellular telephone to the cellular telephone of Norman prior to
October 27, 2006, and included the recorded phone calls placed
at Snedeker’s direction.
Gardner challenges this evidence, claiming that the
Government failed to prove that he entered into an agreement
with anyone, because neither Alonzo Norman nor anyone else
testified to an agreement to distribute more than fifty grams of
crack, nor was there any evidence of a specific transaction
between Gardner and Norman. He also notes that the videotape of
the transaction with the confidential informant did not capture
Gardner’s person. Gardner finally challenges as unreliable the
testimony of the confidential informant, of Jeremy Taylor, who
testified against Gardner, and of Agent Snedeker, to the extent
that he failed to tape record Gardner’s incriminating
statements.
As evidenced by the finding of guilt, the jury
resolved any conflicts in testimony in favor of the prosecution,
determined the Government’s witnesses to be sufficiently
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credible to support their verdict of guilty, and otherwise found
sufficient circumstantial and direct evidence of guilt.
Gardner’s claims on appeal that the witnesses’ testimony was
inconsistent or not credible, or that the witnesses’ self-
interest outweighed their credibility, are insufficient to
support reversal of the jury’s verdicts, because in resolving
issues of substantial evidence, this court does not weigh
evidence or review witness credibility. Lomax, 293 F.3d at 705;
Burgos, 94 F.3d at 863. We find that this evidence is adequate
and sufficient to support the jury’s conclusion beyond a
reasonable doubt that Gardner had an agreement with at least one
other individual to engage in conduct that violated a federal
drug law, and that he knowingly and voluntarily participated in
the conspiracy. See Wilson, 135 F.3d at 306.
To prove perjury, the Government must establish that
Gardner gave false testimony under oath “concerning a material
matter with the willful intent to provide false testimony,
rather than as a result of confusion, mistake, or faulty
memory.” See United States v. Dunnigan, 507 U.S. 87, 94 (1993);
United States v. Smith, 62 F.3d 641, 646 (4th Cir. 1995). Here,
the Government introduced evidence in the form of a transcript
of a supervised release revocation hearing held on November 20,
2006, in which Gardner denied, under oath, setting up five or
six drug deals a week for Alonzo Norman, and denied being
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involved in any crack cocaine transactions on either the
Virginia or Tennessee side of State Street on October 23, 2006.
The sole basis for Gardner’s claim of insufficiency of
the evidence relating to the perjury conviction is his claim
that “[b]ecause the Government failed to prove that Gardner in
fact made incriminating admissions to Agent Snedeker, the
Government failed to prove that Gardner made materially false
statements at the revocation hearing.” As discussed above,
however, in convicting Gardner of conspiracy, the jury
apparently believed that Gardner made the incriminating
statements to Agent Snedeker. Just as this court will not
second-guess the credibility findings of the jury relative to
the conspiracy conviction, it will not set aside the jury’s
credibility findings relative to the perjury conviction. See
Foster, 507 F.3d at 245.
There is no merit to Gardner’s claims of insufficiency
of the evidence. The jury’s verdict on each of the three counts
was amply supported by the evidence.
Accordingly, we affirm Gardner’s conviction and
sentence. 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
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