United States v. Patrice B. Wilson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4115
PATRICE BEHANZIN WILSON, a/k/a
K-Mel,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
W. Earl Britt, Senior District Judge.
(CR-96-34-BR)
Argued: February 28, 2000
Decided: June 12, 2000
Before WILKINSON, Chief Judge, WIDENER, Circuit Judge,
and James R. SPENCER, United States District Judge
for the Eastern District of Virginia, sitting by designation.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Dolores Jones Faison, Jacksonville, North Carolina, for
Appellant. John Samuel Bowler, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee. ON BRIEF: Janice McKenzie
Cole, United States Attorney, Anne M. Hayes, 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Unpublished opinions are not binding precedent in this circuit.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:
Patrice Wilson, known on the street as "K-Mel," appeals his con-
viction for conspiracy to distribute crack cocaine in violation of Title
21 U.S.C. § 846 and the resulting 360 month sentence. We affirm.
In December 1994, the government raided the Hopkins Building,
an establishment regarded by law enforcement as the primary location
for drug distribution in downtown Jacksonville, North Carolina. A
large amount of crack was recovered and a number of suspected drug
dealers were arrested at that time. Over the next year, the government
questioned the dealers, most of whom named Wilson as one of the
main suppliers of crack in Jacksonville. Several witnesses confirmed
that Wilson's involvement with illegal drug distribution in or near the
Hopkins Building began as early as 1989.
On May 10, 1996, Detective Paul Spring of the Jacksonville Police
Department stopped Wilson on Bell Fork Road in Jacksonville. The
stop was initiated after Officer Spring received information from a
confidential informant that Wilson was in Jacksonville. Officer
Spring arrested Wilson for the sale and delivery of cocaine. In Wil-
son's car, Spring found a pager, $2,040 in cash and a plastic bag tied
in a way that suggested that Wilson had used the bag for drug transac-
tions.
On May 28, 1996, Wilson was indicted for conspiracy to distribute
crack cocaine from 1989 to 1996. Wilson entered a plea of not guilty
and proceeded to a jury trial. At trial the government presented twelve
witnesses who were involved in the drug trade with Wilson. The
defendant did not call any witnesses or put on any evidence during
the trial.
The jury returned a verdict of guilty on October 17, 1996. The
court sentenced Wilson to 360 months in prison, a $17,082.00 fine,
60 months of supervised release, and a $100 assessment.
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Wilson asserts that the district court improperly admitted hearsay
statements of co-conspirators without sufficient proof of the existence
of a conspiracy. We review admission of such evidence for abuse of
discretion. See United States v. Neal, 78 F.3d 901, 905 (4th Cir.
1996). We find no abuse of discretion here. We note that many of the
statements are either not hearsay or do not implicate the co-
conspirator exception of Fed. R. Evid. 801. Even if some statements
were improperly admitted, we conclude that given the entirety of the
evidence, they did not substantially affect the jury's verdict. Accord-
ingly, any error which may have occurred in their admission was
harmless. See United States v. Ince, 21 F.3d 576, 583 (4th Cir. 1994).
Wilson asserts next that the evidence was insufficient to support his
conviction because he was charged with one conspiracy spanning
from 1989 to 1996, while the evidence at trial demonstrated multiple
individual conspiracies separated by time. We conclude that the evi-
dence presented and the reasonable inferences drawn therefrom are
sufficient, when viewed in the light most favorable to the Govern-
ment, to establish one conspiracy from 1989 to 1996. See United
States v. Banks, 10 F.3d 1044 (4th Cir. 1993) (explaining that a con-
spiracy need not result in a formal structure, but may be found in
loosely-knit associations of individuals linked by their mutual interest
in sustaining the overall enterprise of catering to the ultimate demands
of a particular drug consumption market). In addition, the substantial
absence of one conspirator for a period of time does not necessarily
convert one on-going conspiracy into two distinct conspiracies. See
United States v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988). Accord-
ingly, we find sufficient evidence to support the jury's verdict. See
Glasser v. United States, 315 U.S. 60, 80 (1942); United States v.
Burgos, 94 F.3d 849, 858 (4th Cir. 1996), cert. denied, ___ U.S. ___,
65 U.S.L.W. 3586 (U.S. Feb. 24, 1997) (No. 96-6868).
Upon leave of this court, Wilson has submitted a pro se supplemen-
tal brief. In this late breaking brief, Wilson alleges now that his con-
viction was acquired by the government's knowing use of perjured
testimony. He reasons that since he was in a Georgia prison during
a certain period,* any testimony ascribing illegal activity to him dur-
_________________________________________________________________
*Wilson states, without factual corroboration in the trial record, that he
was in a Georgia prison from October 30, 1992-May 4, 1992. It appears
from the presentence report that appellant was incarcerated at some point
prior to 1993. We can only speculate as to the actual duration of that
term of imprisonment.
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ing that period is perjury. He argues further that the United States
knew that such testimony was necessarily false.
The problem for appellant is that none of the facts upon which he
builds this new claim regarding the knowing use of perjured testi-
mony were admitted in the trial record. In fact appellant, following
the strategic advice of his counsel, did not put on any evidence at
trial. The facts regarding his Georgia imprisonment (including its
duration) were uniquely within Wilson's personal knowledge at the
time of his trial. Not only did appellant make no effort to set the
record straight by putting on evidence, he also did not seek to pri-
vately inform the government of his term of imprisonment. Appellant
cannot now be allowed to argue facts not in evidence. Any remedy
for alleged errors based on facts first submitted in appellant's supple-
mental brief would not be available on direct appeal. See Williams v.
Dixon, 961 F.2d 448, 458 (4th Cir. 1992); Funkhouser v. United
States, 282 F.2d 341, 342 (4th Cir. 1960).
A review of the trial record indicates that only two witnesses attri-
buted drug activity to Wilson during the 1991 period when he was
apparently imprisoned in Georgia. The first was Anand Lakram, who
testified that one of his dealers purchased crack from Wilson in 1991.
The second was Clinton Mitchell, who testified that he engaged in
approximately three transactions with Wilson between 1990 and
1992, most likely in 1991. Given that Mitchell was uncertain of the
exact date of his transactions, and thus only speculated 1991, this
statement cannot be described categorically as perjured testimony. As
to Lakram's statement, we do not believe that there is a reasonable
likelihood that this one statement from a single witness affected the
jury's verdict, especially in light of the overwhelming and substantial
remaining evidence. Accordingly this claim, even if we were able to
review it on the merits, would not merit reversal.
We therefore affirm Wilson's conviction and sentence.
AFFIRMED
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