United States v. Wilson Garrett, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4895
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WILSON LEE GARRETT, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:09-cr-00265-AW-1)
Submitted: August 17, 2012 Decided: August 23, 2012
Before GREGORY, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian K. McDaniel, BRIAN K. MCDANIEL & ASSOCIATES, Washington,
D.C., for Appellant. Rod J. Rosenstein, United States Attorney,
Christen A. Sproule, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wilson Lee Garrett, Jr., appeals from the jury verdict
convicting him of conspiracy to distribute and to possess with
intent to distribute cocaine; attempt to possess with intent to
distribute cocaine; possession with intent to distribute
cocaine; and possession of firearms in furtherance of a drug
trafficking crime. On appeal, he challenges the sufficiency of
the evidence for two counts and the admission of certain
evidence. We affirm.
I.
“A defendant challenging the sufficiency of the
evidence faces a heavy burden.” United States v. Foster, 507
F.3d 233, 245 (4th Cir. 2007). We review a sufficiency of the
evidence challenge by determining whether, viewing the evidence
in the light most favorable to the Government, any reasonable
trier of fact could find the essential elements of the crime
beyond a reasonable doubt. Id. We will uphold the jury’s
verdict if substantial evidence supports it and will reverse
only in those rare cases of clear failure by the prosecution.
Id. at 244-45.
Garrett first contends that the evidence was
insufficient to support his conspiracy conviction because, at
most, it established nothing more than a buyer/seller
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relationship between himself and David Zellars, a cooperating
witness. If a distribution transaction includes an agreement
that the buyer will resell the cocaine in the marketplace, the
two participants to the distribution transaction have also
“conspired” to the redistribution of the cocaine, a separate
offense, and therefore can be found guilty not only of the
distribution offense but also of a conspiracy offense. United
States v. Edmonds, 679 F.3d 169, 174 (4th Cir. 2012). To prove
conspiracy, the Government need not prove an explicit agreement
and may rely upon indirect evidence from which the conspiracy
agreement may be inferred. Thus, we have concluded that “the
amount of cocaine involved in the distribution transaction, if
sufficiently great, may indicate that the parties have engaged
in the distribution transaction with an implicit agreement of
further redistribution.” Id. In addition, “the regularity of
individual distribution transactions may indicate the existence
of a conspiracy.” Id. Moreover, “a transaction involving a
consignment arrangement or the ‘fronting’ of drugs indicates
conspiracy to engage in drug trafficking beyond the immediate
distribution transaction.” Id.Here, the evidence showed that Garrett made repeated
multi-kilogram cocaine purchases from Zellars, that Zellars
fronted cocaine to Garrett on a regular basis, and that Zellars
and Garrett had established a verbal code and ongoing
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notifications regarding cocaine sales. Contrary to Garrett’s
contentions, this evidence showed more than just a buyer-seller
relationship, and we conclude that the evidence was more than
sufficient to support Garrett’s conspiracy conviction. See
United States v. Reid, 523 F.3d 310, 317 (4th Cir. 2008)
(holding that continued relationships and repeated drug
transactions between parties are indicative of a conspiracy,
particularly when the transactions involve substantial amounts
of drugs).
II.
Garrett next contends that the district court erred by
permitting Zellars to testify about Zellars’ “arrest for 70
kilograms of cocaine, his involvement in numerous high volume
drug transactions and the drug network he helped bring down.”
Garrett asserts that none of this evidence was related to him
and, as such, was irrelevant and highly prejudicial. While
Garrett did not cite to the specific testimony of which he
complains, Zellars testified as to where he obtained the cocaine
he was going to sell to Garrett to redistribute. He also
testified regarding his arrest following the seizure of a large
shipment and his agreement to cooperate with the Government to
provide information about Garrett and others. Garrett did not
object to this testimony.
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Rule 403 of the Federal Rules of Evidence provides
that, although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence. Fed. R. Evid.
403. * Because Garrett did not challenge the admission of this
testimony at trial, this claim is reviewed for plain error. To
establish plain error, Garrett must demonstrate that: (1) there
was error; (2) the error was “plain;” and (3) the error affected
his substantial rights. United States v. Olano, 507 U.S. 725,
732 (1993). Even if the three elements of this standard are
met, we may exercise our discretion to notice the error only if
“the error seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.” Id. (internal
quotation marks and citation omitted).
Initially, we find that the evidence was properly
admitted to provide the context, detail, and scope of the
conspiracy in which Garrett was involved. The testimony
established where Zellars got the cocaine that he provided to
Garrett, and it also explained how Zellars became a cooperating
*
The Federal Rules of Evidence were stylistically amended
in December 2011, after Garrett’s conviction. The substance of
the Rules, however, remained the same.
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witness. Furthermore, even assuming, arguendo, that the
evidence should have been excluded, the evidence was not
unfairly prejudicial and therefore its admission did not affect
Garrett’s substantial rights. The evidence was neither lengthy
nor likely to inflame the jury. Thus, the district court did
not commit plain error by allowing Zellars’ testimony.
III.
Next, Garrett contends that the district court
improperly allowed the Government to offer evidence of Garrett’s
previous arrest to impeach Garrett in violation of Federal Rule
of Evidence 609 (permitting admission of certain prior
convictions for the purposes of attacking a defendant’s
truthfulness). During Garrett’s cross examination, the
Government asked Garrett if he made false statements to the
police when he was questioned during a stop of his vehicle.
Garrett denied making any false statement, and the Government
then questioned Garrett about his statement to police that he
had never been arrested before. Specifically, over Garrett’s
objection, the Government asked Garrett whether he told police
that he had been arrested in 2001 for assault and for using and
carrying a handgun, and Garrett said he had not.
A district court’s evidentiary rulings are reviewed
for abuse of discretion, which occurs only when the district
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court’s decision is guided by erroneous legal principles or
rests upon a clearly erroneous factual finding. United
States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010). Further,
evidentiary rulings are subject to harmless error review, such
that any error is harmless where we may say “with fair
assurance, after pondering all that happened without stripping
the erroneous action from the whole, that the judgment was not
substantially swayed by the error.” Id. (quotation marks
omitted).
Under Rule 608(b), evidence of Garrett’s lie to the
police was admissible as impeachment if probative of
truthfulness or untruthfulness. United States v. McMillan, 14
F.3d 948, 956 (4th Cir. 1994). Garrett’s testimony that he lied
to the police (about the arrest and numerous other issues)
clearly indicates a character for untruthfulness and, thus, was
admissible under Rule 608(b). Accordingly, there was no abuse
of discretion. Moreover, even if there was, this limited line
of questioning was undoubtedly harmless given the plethora of
evidence against Garrett.
IV.
Finally, Garrett asserts that there was insufficient
evidence to show an intent to distribute the actual drugs found
in his home, given the small amount (3.4 grams) and the fact
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that the drugs were not found in proximity to drug
paraphernalia. As such, Garrett contends that no reasonable
mind could conclude that this cocaine was intended for anything
other than personal use.
Intent to distribute narcotics may be inferred from a
defendant’s possession of drug-packaging paraphernalia or a
quantity of drugs larger than needed for personal use. United
States v. Fisher, 912 F.2d 728, 730 (4th Cir. 1990). Possession
of large amounts of cash and firearms constitutes “additional
circumstantial evidence of . . . involvement in narcotics
distribution.” Id. at 731. Possession of an electronic scale
may also constitute circumstantial evidence of an intent to
distribute narcotics. United States v. Harris, 31 F.3d 153,
156-57 (4th Cir. 1994).
Viewing the evidence in the light most favorable to
the Government, the evidence presented at trial overwhelmingly
supports a finding that Garrett possessed the cocaine with an
intent to distribute. Police found 3.4 grams of cocaine in a
jacket in the master bedroom closet. An expert testified that
the quantity of cocaine was inconsistent with personal use and
constituted 34 dosage units of cocaine. Moreover, the cocaine
was found in a jacket making the drugs mobile, as opposed to
being in the nightstand with paraphernalia for personal use. In
addition, the expert testified that the currency, digital scale,
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money counter, six phones, and firearms found at Garrett’s home
indicated that Garrett was “a narcotics distributor.” As such,
Garrett’s claim of insufficient evidence is without merit.
Based on the foregoing, we affirm Garrett’s
convictions. 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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