United States v. Fair

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5043
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALVIN DWIGHT FAIR,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:03-cr-00051-1)
Submitted: August 20, 2007 Decided: August 29, 2007
Before TRAXLER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Norman Butler, THE LAW OFFICE OF NORMAN BUTLER, Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Jonathan Vogel, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Alvin Dwight Fair of conspiracy to
possess with intent to distribute cocaine base, 21 U.S.C. § 846(2000), possession with intent to distribute cocaine base (three
counts), 21 U.S.C. § 841 (2000), use and carry of a firearm during
and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1)
(2000), and possession of a firearm by a convicted felon, 18 U.S.C.
§ 922 (g)(1) (2000). He was sentenced to 300 months of
imprisonment. On appeal, Fair argues that the district court erred
in: (1) denying defense counsel’s motion for a pretrial mental
examination to determine Fair’s competency to stand trial; (2)
admitting inadmissible hearsay statements; (3) denying his motion
for a judgment of acquittal as to the firearm counts on the basis
that they were unsupported by substantial evidence; and (4)
sentencing him for trafficking in “crack” cocaine. We affirm.
Fair first argues that the district court erred in
denying defense counsel’s motion for a pretrial mental examination
to determine his competency to stand trial. The determination of
whether a defendant is competent to stand trial is a factual
determination, and the district court’s factual findings regarding
competency are disturbed only if clearly erroneous. United States
v. Morgano, 39 F.3d 1358, 1373 (7th Cir. 1994); cf. United States
v. Cox, 964 F.2d 1431, 1433 (4th Cir. 1992) (reviewing for clear
error a competency determination under 18 U.S.C. § 4246 (2000)).
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The test for mental competence is whether the defendant
“has sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding—and whether he has a
rational as well as factual understanding of the proceedings
against him.” Dusky v. United States, 362 U.S. 402, 402 (1960)
(per curiam); see also 18 U.S.C. § 4241(a) (2000) (providing that
district court should hold hearing to determine defendant’s mental
competency if there is reasonable cause to believe that defendant
may presently be suffering from a mental disease or defect
rendering him mentally incompetent to the extent he is unable to
understand nature and consequences of the proceedings against him
or to assist properly in his defense). Indicia of competence can
include a defendant’s behavior, his demeanor at trial, and any
prior medical opinion on competence. Drope v. Missouri, 420 U.S.
162, 180 (1975). The district court must only ensure the defendant
has the ability to understand, the ability to assist, and the
ability to communicate with his attorney; it is not required to
determine whether the defendant actually acted in accordance with
his ability. Bell v. Evatt, 72 F.3d 421, 432 (4th Cir. 1995).
We have reviewed the record and in particular the
transcript of the hearing on defense counsel’s “Motion for Pretrial
Psychiatric and/or Psychological Examination.” The district court
adequately considered counsel’s affidavit and questioned Fair as to
his understanding of the proceedings against him. We find that the
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district court did not err in finding Fair competent to stand trial
and thereby did not err in denying counsel’s motion for a mental
examination.
Next, Fair maintains that the court erred in admitting
inadmissable hearsay evidence, specifically, statements made by two
non-testifying co-defendants. The Government responds that the
disputed testimony was not hearsay as the statements were made by
a co-conspirator and therefore admissible under Fed. R. Evid.
801(d)(2)(E).
This court reviews evidentiary rulings under Fed. R.
Evid. 801(d)(2)(E) for an abuse of discretion. United States v.
Blevins, 960 F.2d 1252, 1255-56 (4th Cir. 1992). Factual findings
as to the scope of the conspiracy are reviewed for clear error,
Bourjaily v. United States, 483 U.S. 171, 181 (1987), and are only
overturned on appeal for an abuse of discretion. Blevins, 960 F.2d
at 1255. A statement is not hearsay if it is offered against the
defendant and is a statement by a co-conspirator of the defendant
during the course of and in furtherance of the conspiracy. Fed. R.
Evid. 801(d)(2)(E). Accordingly, when the Government shows by a
preponderance of the evidence that (1) a conspiracy existed of
which the defendant was a member, and (2) the co-conspirators’
statements were made in furtherance of the conspiracy, the
statements are admissible. United States v. Neal, 78 F.3d 901, 905
(4th Cir. 1996); Blevins, 960 F.2d at 1255. The party seeking to
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introduce the co-conspirator statement bears the burden of
establishing these preliminary facts for admissibility, but it need
only do so by a preponderance of the evidence. Bourjaily, 483 U.S.
at 176. In resolving these preliminary factual questions for
admissibility, the court may consider all evidence before it,
whether admissible at trial or not, including the co-conspirator
statements sought to be admitted. Id. at 176-81. This court
reviews a district court’s findings of fact with respect to these
threshold criteria for admission under the clearly erroneous
standard. Id. at 181; Blevins, 960 F.2d at 1255. We find that
there is sufficient evidence to support the court’s finding that
the disputed statements were made by co-conspirators in the course
of the conspiracy and, therefore, were admissible as non-hearsay
under Fed. R. Evid. 801(d)(2)(E).
Fair also argues that the district court erred in denying
his Fed. R. Crim. P. 29 motion for acquittal based on insufficient
evidence to support his 18 U.S.C. § 924(c)(1) and 922(g)(1)
charges. This court reviews the district court’s decision to deny
a Rule 29 motion de novo. United States v. Smith, 451 F.3d 209,
216 (4th Cir.), cert. denied, 127 S. Ct. 197 (2006). Where, as
here, the motion was based on a claim of insufficient evidence,
“[t]he verdict of a 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);
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Smith, 451 F.3d at 216. This court has “defined ‘substantial
evidence’ as ‘evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt.’” Smith, 451 F.3d at
216 (quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc)). This court “must consider circumstantial as well
as direct evidence, and allow the government the benefit of all
reasonable inferences from the facts proven to those sought to be
established.” 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 assumes
that the jury resolved all contradictions in the testimony in favor
of the Government. United States v. Romer, 148 F.3d 359, 364 (4th
Cir. 1998). This court “can reverse a conviction on insufficiency
grounds only when the prosecution’s failure is clear.” United
States v. Moye, 454 F.3d 390, 394 (4th Cir.) (internal quotation
marks and citation omitted), cert. denied, 127 S. Ct. 452 (2006).
We have reviewed the record and find sufficient evidence to support
the jury’s § 922(g)(1) and § 924(c)(1) convictions. Accordingly,
we find no error in the district court’s denial of Fair’s motion
for acquittal on these two counts.
Last, Fair argues that the indictment did not specify
that the cocaine base involved was “crack” and, because the jury
did not find it was “crack,” he is not subject to the statutory
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mandatory minimum sentence of ten years or the applicable enhanced
sentence of twenty years as those mandatory minimums apply only to
fifty grams or more of “crack cocaine.” Tracking the language of
21 U.S.C. § 841(b)(1)(A)(iii) (2000), the indictment charged Fair
with conspiracy to possess with intent to distribute cocaine base
and possession with intent to distribute cocaine base. This court
has opined that “cocaine base” and “crack cocaine” are
interchangeable terms. United States v. Ramos, 462 F.3d 329, 334
(4th Cir.), cert. denied, 127 S. Ct. 697 (2006). Therefore, the
distinction Fair draws between crack cocaine and cocaine base is
without merit.
Accordingly, we affirm Fair’s convictions 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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