United States v. Richardson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5676
DORAN RICHARDSON,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5848
EDDIE SHEPHARD, a/k/a Shep,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5849
EDDIE SHEPHARD, a/k/a Shep,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-95-2, CR-95-4)
Submitted: June 10, 1997
Decided: July 31, 1997
Before MURNAGHAN, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Martin P. Sheehan, SHEEHAN & NUGENT, Wheeling, West Vir-
ginia; William Cipriani, CIPRIANI & PAULL, L.C., Wellsburg, West
Virginia, for Appellants. William D. Wilmoth, United States Attor-
ney, Sam G. Nazzaro, 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Unpublished opinions are not binding precedent in this circuit.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:
Appellants appeal their conviction of conspiracy to possess with
the intent to distribute and to distribute crack cocaine, in violation of
21 U.S.C. § 2, 841, 846, 860 (1994). We affirm.
In January 1995, following an investigation of an open-air crack
cocaine market in Wheeling, West Virginia, Appellants were indicted
along with two other named conspirators and other conspirators
"known and unknown," in a twenty-five count indictment charging
conspiracy to possess with intent to distribute crack cocaine. At the
same time, a second indictment was issued charging another drug
conspiracy; Appellant Shephard was named in the second indictment,
but Appellant Richardson was not.
On appeal, Appellants claim that the district court erred by admit-
ting testimony from individuals named in the second conspiracy
indictment to prove the conspiracy charged in the first indictment.
Appellants further claim that there was insufficient evidence to sus-
tain a conviction of conspiracy, that the district court erred in not
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granting a severance, and that the district court erred in enhancing
Appellants' sentences under 21 U.S.C. § 860 (1994).
This court reviews a district court's evidentiary decision for abuse
of discretion. United States v. Hassan El, 5 F.3d 726, 731 (4th Cir.
1993). We find that the district court did not abuse its discretion by
admitting testimony from individuals named in a separate conspiracy
because there is sufficient evidence to show that these individuals
were "known" but unnamed conspirators of the conspiracy charged in
the first indictment. See United States v. Brooks, 957 F.2d 1138, 1147
(4th Cir. 1992); see generally United States v. Goins, 11 F.3d 441,
442-43 (4th Cir. 1993).
Appellants' contention that there was insufficient evidence to sup-
port a conviction of conspiracy fails. The government must show two
elements in a conspiracy case: (1) an agreement between two or more
persons, and (2) an intent to achieve a certain objective through
unlawful means. See United States v. Burgos, 94 F.3d 849, 857 (4th
Cir. 1996) (in banc), cert. denied, #6D6D 6D# U.S. ___, 65 U.S.L.W. 3586(U.S. Feb. 24, 1997) (No. 96-6868). We must affirm Appellants' con-
viction "if there is substantial evidence, taking the view most favor-
able to the Government, to support it." Glasser v. United States, 315
U.S. 60, 80 (1942).
Viewed in the light most favorable to the Government, the evi-
dence at trial showed that Appellants associated together, as well as
conspired with other individuals, to distribute crack cocaine. Viewing
the evidence in the light most favorable to the Government--
including testimony from co-conspirators, along with video and audio
surveillance tapes--it is sufficient to sustain a conviction for conspir-
acy.
We further find that Appellants' claim that the district court erred
by not granting a severance is meritless. Because Appellants failed to
raise this issue below, the standard of review is plain error. See Fed.
R. Crim. P. 12; United States v. Olano, 517 U.S. 725 (1993). Because
the cases involved intertwined drug conspiracy offenses, the district
court did not plainly err in failing to sever the cases sua sponte.
Finally, in accordance with our established precedent, we find
Appellants' claim that the district court erred by enhancing their sen-
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tences under 21 U.S.C. § 860 (1994) to be meritless. See United
States v. Campbell, 935 F.2d 39, 44 (4th Cir. 1991).
Accordingly, we affirm Appellants' convictions and sentences. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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