United States v. Reeves

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4115
MICHAEL TERRENCE REEVES,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-97-94-H)
Submitted: February 26, 1999
Decided: March 19, 1999
Before WIDENER, HAMILTON, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Charles Christopher Henderson, Trenton, North Carolina, for Appel-
lant. Janice McKenzie Cole, United States Attorney, Anne M. Hayes,
Assistant United States Attorney, John Howarth Bennett, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Michael Terrence Reeves appeals his conviction for conspiracy to
possess cocaine, cocaine base, heroin, and marijuana with the intent
to distribute, and conspiracy to distribute the same in violation of 21
U.S.C. § 846 (1994), and use and carry of a firearm under 18
U.S.C.A. § 924(c)(1) (West 1994 & Supp. 1998). Reeves raises two
issues on appeal: (1) that there was insufficient evidence to support
his conviction; and (2) that there was a variance between the indict-
ment and the evidence adduced at trial. We affirm, and deny Reeves'
pending motion to file a pro se supplemental brief.
A conviction should be sustained if, viewed in the light most favor-
able to the government, there is substantial evidence to support it. See
Glasser v. United States, 315 U.S. 60, 80 (1942). In conducting a
review for substantial evidence, circumstantial as well as direct evi-
dence is considered, and the government is given the benefit of all
reasonable inferences from the facts proven to the facts sought to be
established. See United States v. Tresvant, 677 F.2d 1018, 1021 (4th
Cir. 1982). To prove a § 846 conspiracy, the government must show
that there was an agreement between two or more persons to violate
the federal drug laws, that the defendant knew of the agreement, and
that he voluntarily joined it. See United States v. Burgos, 94 F.3d 849,
857 (4th Cir. 1996) (en banc).
In reviewing the record under this standard, we find our opinion in
United States v. Banks, 10 F.3d 1044 (4th Cir. 1993), to be control-
ling. In Banks, we explained that:
[i]t is of course elementary that one may be a member of a
conspiracy without knowing its full scope, or all its mem-
bers, and without taking part in the full range of its activities
or over the whole period of its existence. Critically, it is not
necessary to proof of a conspiracy that it have a discrete,
identifiable organizational structure; the requisite agreement
to act in concert need not result in any such formal structure,
indeed frequently, in contemporary drug conspiracies, con-
templates and results in only a loosely-knit association of
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members linked only by their mutual interest in sustaining
the overall enterprise of catering to the ultimate demands of
a particular drug consumption market (and, undoubtedly on
the part of some, by fear of the consequences of abandoning
or subverting the enterprise). Furthermore, the fact that par-
allel suppliers, or middlemen, or street dealers serving such
a market may sometimes, or even always, compete for sup-
plies or customers in serving that market does not on that
account alone disprove either the existence of a single con-
spiracy to achieve the overall results of their several efforts,
or the participation of particular ones of them in that con-
spiracy.
Banks, 10 F.3d at 1054.
The evidence presented at Reeves' trial describes precisely such a
"loose-knit" conspiracy. Reeves sold drugs within Campbell Terrace,
a public housing project in Fayetteville, North Carolina. According to
the Government's witnesses, many of them drug dealers themselves,
Campbell Terrace was the site of extensive drug dealing. These wit-
nesses explained that, although some dealers worked in groups, and
others alone, the project was essentially a "big family" that worked
together and looked out for each other in the drug business. If one
dealer needed something, he could obtain it from other sellers or
groups thereof. The dealers were also protective of the area, and out-
siders attempting to sell within the project would be "beat down or
shot." Reeves admitted to selling drugs within this atmosphere, and
to engaging in drug transactions with a large number of dealers within
the project. Given our holding in Banks, we find this evidence suffi-
cient to sustain Reeves' conviction.
Reeves next contends that there was a variance between his indict-
ment, which alleged a single conspiracy, and the evidence adduced at
trial, which demonstrated the existence of multiple conspiracies. In a
conspiracy prosecution, the Defendant may establish a material vari-
ance by demonstrating that the indictment charges a single conspiracy
but the evidence adduced at trial proved multiple and separate con-
spiracies. See Kotteakos v. United States, 328 U.S. 750, 755-56
(1946). The Government bears the burden of proving a single conspir-
acy charged in an indictment. See United States v. Hines, 717 F.2d
31481, 1489 (4th Cir. 1983). "Whether there is a single conspiracy or
multiple conspiracies, as well as an agreement to participate in the
conspiracy, is a question of fact for the jury and we must affirm its
finding of a single conspiracy ``unless the evidence, taken in the light
most favorable to the government, would not allow a reasonable jury
so to find.'" United States v. Harris, 39 F.3d 1262, 1267 (4th Cir.
1994) (quoting United States v. Urbanik, 801 F.2d 692, 695 (4th Cir.
1986)).
A reversal is only proper on variance grounds if the variance
infringed the appellant's substantial rights and resulted in actual prej-
udice. See United States v. Kennedy, 32 F.3d 876, 883 (4th Cir. 1994).
To demonstrate actual prejudice from a multiple conspiracy variance,
the appellant must show that there were so many defendants and con-
spiracies before the jury as to make it likely that the jury would trans-
fer evidence from one conspiracy to a defendant who was not
involved therein. See id.Following a review of the trial testimony, we conclude that even
if Reeves can demonstrate a variance, he cannot demonstrate preju-
dice. Although the witnesses testified as to the existence of smaller
groups within the Campbell Terrace project, these witnesses unequiv-
ocally stated that Reeves was not a part of these groups, but was only
a part of the larger unit encompassing the entire project. Further, the
evidence presented included only transactions in which Reeves was
a participant. Accordingly, we find that even assuming a variance,
there was no prejudice to Reeves. We therefore affirm his conviction.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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