United States v. Demby

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4571
BONITA R. DEMBY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CR-96-440)
Submitted: February 3, 1998
Decided: March 9, 1998
Before WILKINS and LUTTIG, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
JoAnne B. Butt, Alexandria, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, Randy I. Bellows, Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Bonita R. Demby was convicted by a jury of conspiracy to possess
with intent to distribute and to distribute fifty grams or more of crack
cocaine in violation of 21 U.S.C. § 846 (1994). She was sentenced to
235 months' imprisonment. On appeal, Demby alleges prosecutorial
misconduct and also challenges certain evidentiary decisions by the
district court, the sufficiency of the evidence, her sentence, and the
district court's decision not to grant her a new trial. We find that all
of Demby's claims are meritless. We affirm Demby's conviction and
sentence and we affirm the district court's denial of Demby's motion
for a new trial.
Based on the testimony of five co-conspirators and significant doc-
umentary evidence, the Government established that Demby was an
active participant in a drug trafficking scheme that distributed large
amounts of crack cocaine along Route One in the counties of Dum-
fries and Woodbridge, Virginia. The evidence showed that Demby
initially facilitated the drug trafficking scheme from the Scottish Inn,
a motel where she worked. Demby registered members of the conspir-
acy under false names, warned them about making too many phone
calls which would draw suspicion to the drug dealing activities,
turned off the night alarm so that conspirators could meet with their
customers, served as a lookout for police activity in the area, and peri-
odically switched rooms for the conspirators to avoid suspicion. In
addition, Demby repeatedly rented cars for co-conspirators to use in
acquiring large quantities of crack cocaine from New York and even
accompanied the co-conspirators on some of the trips. There was also
testimony that Demby was seen directly handling the crack cocaine
by carrying it in her purse on several occasions and joining a co-
conspirator at a meeting with a supplier. When one of the co-
conspirators went on vacation, Demby took over his drug trafficking
activities by supplying other conspiracy members with additional
crack cocaine for distribution, collecting money from them for their
previous sales, and supplying several thousand dollars for a resupply
trip to New York City. Finally, there was testimony that Demby drove
two co-conspirators around while they distributed drugs, purchased a
1988 Pontiac Bonneville that members used to distribute drugs, and
2
made her apartment available for storage and preparation of crack for
distribution. Demby testified at trial, denying that she facilitated drug
trafficking and that she knew her boyfriend and his associates were
drug traffickers.
I.
Demby challenges several of the district court's evidentiary rul-
ings. First, she alleges that the court erroneously permitted two co-
conspirators, Shannon Terrell and Otto Downs, and another lay wit-
ness, Rose Dorsey, to identify Demby's handwriting on car rental
documents, charge slips, and a bail bond document, all of which were
critical in establishing Demby's participation in the conspiracy.
Demby also contends that the district court should not have permitted
these documents to be admitted into evidence and the Government
should have been required to present a handwriting expert.
The trial court's evidentiary decisions are reviewed for an abuse of
discretion. See United States v. Hassan El, 5 F.3d 726, 731 (4th Cir.
1993). In the instant case, the district court permitted Terrell to iden-
tify Demby's signature based on his testimony that he was familiar
with Demby's handwriting because she had written several hotel
check-out receipts for him. Downs was permitted to identify a rental
car agreement that was signed by Demby because he was present with
Demby when the agreement was signed. Similarly, Dorsey testified
that she was present when both she and Demby signed the bail bond
document.1 The Advisory Committee Notes to Fed. R. Evid. 901(b)
state that a lay witness may identify a handwriting sample if the wit-
ness has sufficient familiarity with the writing. Familiarity may be
obtained by seeing the defendant write or by other means, so long as
the means affords a sufficient basis for identifying the writing on sub-
sequent occasions. See Fed. R. Evid. 901(b) advisory committee's
note. Accordingly, because all three witnesses observed Demby in the
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1 The bail bond document proved that Demby assisted in bailing out co-
conspirator Downs after he and another co-conspirator were arrested on
the New Jersey turnpike with crack cocaine, cocaine powder, and mari-
juana. The document impeached Demby who testified that she had not
known that her boyfriend and his associates were involved in drug traf-
ficking.
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act of writing, the district court did not abuse its discretion in permit-
ting the co-conspirators or Dorsey to identify the handwriting. Fur-
thermore, because the documents were properly authenticated, the
district court did not err in admitting them into evidence.
Demby next contends that evidence of her alleged other crimes and
bad acts should not have been admitted into evidence. Specifically,
Demby contends that the Government should not have been permitted
to present evidence establishing: (1) that Demby used an alias; (2)
that co-conspirator Downs was carrying cocaine powder, crack
cocaine, and marijuana when he was arrested on the New Jersey turn-
pike; (3) that Demby had a prior sexual relationship with co-
conspirator, Wendell Wickham; (4) that Demby lied when she stated
her purse was missing after an attempted robbery at the Scottish Inn
and that she lied when she applied for a replacement license; and (5)
that Demby facilitated drug trafficking at the Scottish Inn. Each of
these claims is meritless.
On direct examination, Demby's attorney raised the issue of
whether Demby had ever used an alias, which she denied. Thus, it
was proper for the Government to attempt to impeach that statement
on cross-examination with evidence of Demby's use of an alias on a
W-2 form and phone service records from a trailer used by the con-
spirators. See Fed. R. Evid. 607, 611(b); Cf. United States v. Ince, 21
F.3d 576, 579 (4th Cir. 1994) (cautioning against prosecution's
impeachment of its own witness with prior inconsistent statement).
Evidence of the drugs seized from Downs when he was arrested on
the New Jersey turnpike was also properly admitted. Demby rented
the vehicle, which was used to acquire drugs from New York. Thus,
this evidence established her part in the conspiracy and was properly
before the jury. See United States v. Chin, 83 F.3d 83, 88 (4th Cir.
1996) cert. denied, ___ U.S. ___, 64 U.S.L.W. 3485 (U.S. Jan. 16,
1996) (No. 95-6391) (holding that Fed. R. Evid. 404(b) does not
require exclusion of evidence regarding acts intrinsic to the crime
charged).
Demby's objection to the testimony that she and Wickham had a
sexual relationship is also meritless because such evidence is not an
example of a prior bad act or other crime within the meaning of Rule
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404(b). Furthermore, the evidence was relevant to establish Demby's
early participation in the conspiracy.2 See id.The contention that the Government implied that Demby lied about
her missing purse and lied in her application for a replacement driv-
er's license is also meritless. Demby admitted she signed some of the
car rental documents. However, she attempted to explain her name on
the remaining documents associated with the conspiracy by suggest-
ing someone impersonated her after her driver's license was stolen.
To prove that her suggestion was false, the Government offered the
testimony of the police officer who investigated a robbery attempt at
the Scottish Inn. The officer stated that Demby found her purse at the
scene and carried it with her in the ambulance. The Government also
elicited testimony from Demby who admitted that when she applied
for a replacement license, she listed the old license as lost, not stolen.
Both attempts at impeachment by the Government were proper.
Demby's next challenge to the evidentiary rulings is that the Gov-
ernment improperly introduced evidence of Demby's facilitation of
drug trafficking activity at the Scottish Inn. Again, this is not evi-
dence of prior bad acts or other crimes as contemplated by the Federal
Rules of Evidence; rather, this is direct evidence to establish the
charge for which Demby was indicted. Thus, this evidence was prop-
erly before the jury. See id.Finally, Demby contends that the district court should not have
admitted the testimony of the co-conspirators because it was uncor-
roborated, and the court should not have permitted the co-conspirators
to testify to statements made in the course of the conspiracy by other
co-conspirators. As a general matter, even the uncorroborated testi-
mony of an accomplice may provide a proper basis for conviction.
See United States v. Burns, 990 F.2d 1426, 1439 (4th Cir. 1993). Fur-
ther, in this case, the testimony of the five co-conspirators was cor-
roborated. In addition to the co-conspirators' testimony, the
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2 Wickham explained that the relationship evolved into a sexual rela-
tionship, at which time Demby showed Wickham a computer printout of
phone calls made from a room rented by one of the conspiracy's custom-
ers. Demby showed Wickham the printout to warn him that too many
phone calls would draw suspicion.
5
Government presented documentary evidence of Demby's participa-
tion via car rental agreements and bail bond documents, police officer
corroboration of the New Jersey turnpike incident in which co-
conspirators were arrested in a vehicle rented by Demby, and police
officer testimony about a local drug bust in which Demby's own vehi-
cle was used. Furthermore, Demby testified that she had lived in a
trailer and purchased a vehicle, both of which were implicated in drug
trafficking. Demby also admitted working at a motel implicated in
drug trafficking and admitted that she knew all five co-conspirators
who were also implicated in drug trafficking. Thus, there was suffi-
cient corroboration of the co-conspirators' testimony.
To permit the testimony of co-conspirators concerning statements
by other co-conspirators under Fed. R. Evid. 801(d)(2)(E), the court
must conclude that a conspiracy existed, which included the declarant
and the party against whom the testimony is sought to be admitted,
and that the statements at issue were made in the course of and in fur-
therance of the conspiracy. See United States v. Neal, 78 F.3d 901,
905 (4th Cir.), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3260 (U.S.
Oct. 7, 1996) (No. 95-9410). The statements Demby challenges are
statements between co-conspirators Wilburn and Terrell. Terrell testi-
fied that Wilburn told him to get more crack cocaine from Demby
while Wilburn was on vacation. Terrell also testified that Wilburn
told him that Demby would turn off the alarms at the Scottish Inn so
the conspirators could conduct business with their clients. Both state-
ments clearly fall within the hearsay exception and therefore were
properly admitted.
II.
Demby alleges prosecutorial misconduct in that the Government:
(1) introduced evidence (as discussed above) of Demby's other
crimes and bad acts; (2) said during the opening statement that crack
cocaine was highly addictive; (3) referred to co-conspirator Downs as
being in "prison" rather than in "jail;" (4) implied that Demby lied
about the robbery at the Scottish Inn, lied to the Department of Motor
Vehicles when she replaced her driver's license, was a "tax cheat,"
and used an alias; (5) asked Demby a series of "isn't it true" questions
on cross-examination, which were designed to inflame the jury and
depict Demby as loathsome and in denial; (6) made misstatements of
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law and fact in closing argument by stating that Demby knew the co-
conspirators and was constantly with them; (7) argued in closing that
the defense had "engaged in an effort to convince you [the jury] by
confusing you [the jury]" and that Demby's defense regarding the
missing purse after the robbery at the Scottish Inn was a false defense;
(8) improperly implied that Demby and her counsel planned a crime
by stating to the jury that Demby and her attorney got their "signals
crossed" during Demby's testimony; and (9) proffered in open court
that co-conspirator Daniel Page would testify that Demby kept crack
cocaine. All of these claims are meritless.
A claim of prosecutorial misconduct requires a showing of preju-
dice, and a defendant's due process rights are only violated when the
prosecutor's misconduct renders a trial fundamentally unfair. See
Darden v. Wainwright, 477 U.S. 168, 181 (1986). The first seven
claims are clearly meritless on their face. Claim eight refers to a state-
ment by the Government during the rebuttal argument about a portion
of Demby's testimony concerning whether she signed a particular car
rental form. Demby initially denied signing the form, but after her
attorney refreshed her recollection, Demby admitted signing the docu-
ment. However, Demby failed to establish that the Government's
characterization of the "crossed signals" prejudiced her and, in light
of the overwhelming evidence against her, the Government's charac-
terization did not render the trial fundamentally unfair.
Demby's ninth claim of prosecutorial misconduct is also meritless.
This claim refers to a proffer by the Government in response to a
question by the court. The Government had already called three co-
conspirators to testify and had just called a fourth when Demby's
attorney objected to the calling of the fourth witness as repetitive and
cumulative. The court asked for a proffer of the witness's expected
testimony, and the Government stated that the witness would testify
to receiving crack from Demby on several occasions. The court ruled
that this evidence was cumulative. The Government's next intended
witness was Daniel Page. The Government began to proffer what
Page's testimony would be. Demby's counsel again objected, so the
proffer was completed at the bench. Demby's claim of prosecutorial
misconduct is aimed at the incomplete proffer by the Government as
to the expected substance of Page's testimony. She contends that the
prosecutor's statement constituted misconduct and that the court also
7
erred by not giving a curative instruction at that moment to the jury.
However, Demby has failed to establish that this statement by the
Government prejudiced her or rendered the trial fundamentally unfair.
See Darden, 477 U.S. at 181; Bell v. Evatt, 72 F.3d 421, 436 (4th Cir.
1995), cert. denied, ___ U.S. ___, 64 U.S.L.W. 3837 (U.S. June 17,
1996) (No. 95-8682). Thus, Demby has not established prosecutorial
misconduct or the need for a curative instruction.
III.
Demby also challenges the sufficiency of the evidence to support
her conviction. She alleges that the non-conspirator testimony is
insufficient to convict her and that the testimony of the co-
conspirators was incredible and unbelievable. On direct review of this
issue, we honor the rule that a jury verdict " must be sustained if there
is substantial evidence, taking the view most favorable to the Govern-
ment, to support it." United States v. Burgos, 94 F.3d 849, 862 (4th
Cir. 1996) (quoting Glasser v. United States, 315 U.S. 60, 80 (1942)),
cert. denied, 65 U.S.L.W. 3586 (U.S., Feb. 24, 1997) (No. 96-6868).
It is "[t]he jury, not the reviewing court,[that] weighs the credibility
of the evidence and resolves any conflicts in the evidence presented."
United States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994).
Taking the evidence in the light most favorable to the Government,
the evidence of Demby's guilt, as described above, which includes the
testimony of fifteen witnesses and Demby herself, as well as abundant
documentary evidence, is more than adequate to support the verdict.
IV.
Demby contends that the district court erred in determining that she
was responsible for 1.5 kilograms or more of crack cocaine. For sen-
tencing purposes, quantities attributable to persons convicted of con-
spiracy to distribute illegal drugs are determined by examining "the
quantity of [drugs] reasonably foreseeable to each coconspirator
within the scope of his agreement." United States v. Irvin, 2 F.3d 72,
78 (4th Cir. 1993); see also U.S. Sentencing Guidelines Manual
§ 1B1.3(a)(1)(B) ("all reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken criminal activity" are
taken into account when determining relevant conduct under the
8
guidelines). The government bears the burden of establishing by a
preponderance of the evidence the quantity of drugs attributable to a
defendant. See United States v. Goff, 907 F.2d 1441, 1444 (4th Cir.
1990). Determinations regarding reasonable foreseeability and quan-
tity of drugs are factual findings reviewed for clear error. See United
States v. Banks, 10 F.3d 1044, 1057 (4th Cir. 1993).
The district court did not clearly err in finding that the probation
officer's calculation of drug quantities was proper. The presentence
report states that the entire conspiracy was responsible for distributing
at least ten kilograms of crack cocaine. The probation officer per-
formed two different calculations to determine the amount for which
Demby should be held accountable. Based on the testimony by the
leader of the conspiracy, Wilburn, about the number of trips to New
York in which Demby participated, the probation officer found that
Demby should be held responsible for 2.1 kilograms of crack cocaine.
This quantity was based on Demby's nine month participation in the
conspiracy. Alternatively, based on the testimony of several other wit-
nesses who testified about Demby's participation in trips to New
York, the probation officer stated that Demby could be held account-
able for the distribution of 1.779 kilograms of crack cocaine. Under
the Guidelines, any quantity above 1.5 kilograms of crack warrants a
base offense level of 38. Thus, the district court's finding is not
clearly erroneous.
Demby also complains that she should have been given an adjust-
ment for a minor role in the offense. "A defendant seeking a down-
ward adjustment for [her] minor role in a criminal offense bears the
burden of proving by a preponderance of the evidence that [she] is
entitled to such an adjustment." United States v. Nelson, 6 F.3d 1049,
1058 (4th Cir. 1993). Demby failed to carry this burden.
As recounted above, Demby facilitated many aspects of the opera-
tion of the conspiracy by arranging for rooms and automobiles, sup-
plying cash, serving as a lookout, taking over the duties of an absent
member, and transporting drugs. The evidence of Demby's participa-
tion in the conspiracy was substantial and does not indicate that she
played merely a minor role in the offense. Therefore, the district court
did not err when it refused to give Demby a two-level downward
departure under USSG § 3B1.2.
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V.
Finally, Demby argues that the district court erroneously refused to
grant her motion for a new trial based on newly discovered evidence.
The newly discovered evidence consisted of Demby's unsupported
statement that she met an inmate while incarcerated who allegedly
told Demby and other inmates that she had rented vehicles in
Demby's name and forged her signature, that Demby was not a partic-
ipant in the conspiracy and did not knowingly participate in any of the
New York trips to acquire crack cocaine, that Demby was serving the
witness's jail time, and that the witness used the alias of Bonita
Demby. The district court concluded that this information did not
constitute newly discovered evidence because the defense was previ-
ously aware of the witness's identity and the information was cumula-
tive in that it corroborated some of the statements Demby made at
trial. Furthermore, the district court found that based on the over-
whelming amount of evidence establishing Demby's participation in
the conspiracy, no new trial was warranted.
A new trial may be granted on the basis of newly discovered evi-
dence if the movant has through due diligence discovered evidence
that is, in fact, newly discovered, not merely cumulative or impeach-
ing, material, and of the type which would probably result in an
acquittal at a new trial. See United States v. Chavis, 880 F.2d 788, 793
(4th Cir. 1989). This court reviews a denial of a motion for new trial
for an abuse of discretion. See United States v. Singh, 54 F.3d 1182,
1190 (4th Cir. 1995). In the instant case, assuming Demby could pro-
duce the evidence she alleges is newly discovered, the additional
information would not result in an acquittal at a new trial. In addition
to the evidence of the car rental agreements, some of which Demby
admitted signing, the Government also established that Demby per-
sonally handled the crack cocaine, stored it in her apartment, and dis-
bursed it to fellow co-conspirators when Wilburn was on vacation.
The Government also established that Demby traveled to New York
during several of the resupply runs. Thus, in light of the overwhelm-
ing evidence of Demby's guilt, the district court did not abuse its dis-
cretion in denying Demby's motion for a new trial.
Accordingly, because all of Demby's claims are meritless, we
affirm her conviction and sentence and affirm the district court's deci-
10
sion not to grant her a new trial. 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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