United States v. Eustach

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-4067
RONALD EUSTACH, a/k/a Tony
Stracan,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4068
JOHNNY JOSEPH, a/k/a Joe Sanders,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-4069
DION JAMES, a/k/a Delvin Percy
James,
Defendant-Appellant.

Appeals from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-00-67)
Submitted: October 10, 2001
Decided: October 24, 2001
2 UNITED STATES v. EUSTACH
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
William F. Nettles, IV, Assistant Federal Public Defender, Florence,
South Carolina; William James Hoffmeyer, NETTLES, MCBRIDE &
HOFFMEYER, P.A., Florence, South Carolina; James T. McBratney,
MCBRATNEY LAW FIRM, Florence, South Carolina, for Appel-
lants. Alfred William Walker Bethea, Assistant United States Attor-
ney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Roland Eustache, Johnny Joseph, and Dion James appeal their con-
victions for possession with intent to distribute less than 500 grams
of cocaine and less than five grams of cocaine base and conspiracy
to possess with intent to distribute in excess of five kilograms of
cocaine and in excess of 50 grams of crack cocaine, under 21
U.S.C.A. §§ 841, 846 (West 1999 & Supp. 2001). Appellants were
each sentenced to 360 months in prison. On appeal, Appellants’ law-
yers have filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), raising several issues but finding them to be without merit.
James has filed a pro se supplemental brief, which appears to raise
arguments on behalf of all three Appellants. Both counseled and pro
se issues will be examined in turn.
UNITED STATES v. EUSTACH 3
I.
Appellants first argue that §§ 841, 846 are unconstitutional in light
of Apprendi v. New Jersey, 530 U.S. 466 (2000). We reject this argu-
ment on the reasoning of the Tenth Circuit in United States v. Cerno-
byl, 255 F.3d 1215 (10th Cir. 2001) (citing cases from the Fifth,
Seventh, and Eleventh Circuits).
II.
All three Appellants challenge the sufficiency of the evidence sup-
porting each of their convictions. A jury’s verdict must be upheld on
appeal if there is substantial evidence in the record to support it.
Glasser v. United States, 315 U.S. 60, 80 (1942). In determining
whether the evidence in the record is substantial, we view the evi-
dence in the light most favorable to the Government and inquire
whether there is 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. United States v. Burgos, 94 F.3d
849, 862 (4th Cir. 1996) (en banc). In evaluating the sufficiency of
the evidence, we do not review the credibility of witnesses, and we
assume 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).
The essential elements of possession with intent to distribute are
(1) knowing and intentional possession of a controlled substance,
either actual or constructive, and (2) the intent to distribute. United
States v. Nelson, 6 F.3d 1049, 1053 (4th Cir. 1993), overruled on
other grounds, Bailey v. United States, 516 U.S. 137 (1995). To prove
a conspiracy to possess crack cocaine with an intent to distribute it,
the Government had to prove (1) the existence of an agreement
between two or more persons to possess crack with intent to distrib-
ute, (2) that the defendant knew of the conspiracy, and (3) that the
defendant knowingly and voluntarily became part of the conspiracy.
Burgos, 94 F.3d at 857. Once the existence of a conspiracy is proven,
the Government need only show a slight connection between the
defendant and the conspiracy. Id. at 861. The testimony of accom-
plices may, by itself, provide an adequate basis for conviction. United
States v. Burns, 990 F.2d 1426, 1439 (4th Cir. 1993).
4 UNITED STATES v. EUSTACH
At trial, Gerald Francois, an FBI informant, testified that he drove
from Miami, Florida to South Carolina with Joseph. After arriving in
Florence, South Carolina, two kilograms of cocaine were removed
from under the hood of the car. Joseph and Francois then went to a
residence and met Eustache. During the next seven days, Eustache
and Joseph cooked some of the cocaine into crack. Then, Eustache,
Joseph, and Francois took the crack to Mullins, South Carolina on
two different occasions and sold it to a female named "Weezy." On
one of these occasions, James was at Weezy’s house, and he returned
with the other three men to Florence.
Francois and James separately returned to Florida, where they
bought "cut" at Joseph’s instructions and had it delivered to Florence
by Jean Jasmine and another man. Francois, Jasmine, Joseph, Eus-
tache, and James met back in Florence, where Joseph wrapped cash
in plastic and gave Jasmine $29,000.
On Francois’ information, the police obtained a search warrant for
the Florence house, where they arrested all three Appellants. Appel-
lants provided false names at arrest and attempted to flee. The police
recovered a cellular phone, pagers, a mashed potato box containing
cocaine, sandwich bags, and a handgun. The police also found docu-
mentation of drug sales and kitchen utensils that appeared to have
been used in the manufacture of crack cocaine. The actual drugs
seized from the raid amounted to over 240 grams of cocaine and 11.4
grams of marijuana.
Travis McCants, an admitted drug dealer, testified about crack
cocaine transactions with Shervin Pierre, who was part of the "Florida
boys," along with Appellants. Although McCants bought from Pierre,
all three Appellants were usually present. Rodney Ward, another drug
dealer, testified that he bought drugs from Joseph. On one occasion,
James was present when Ward purchased 4 ounces (over 112 grams)
of crack cocaine prior to the activities described by Francois.
Christy Gerald testified that when the defendants were arrested,
James said that all the drugs were his. Agent Wilkes testified that
James made this statement to him, also, but then tried to take it back
when Wilkes informed James that he would be prosecuted in federal
court.
UNITED STATES v. EUSTACH 5
Thus, the evidence showed that all three Appellants were part of
a larger conspiracy that sold crack cocaine to other dealers. They were
arrested in possession of a large amount of cocaine as well as drug
paraphernalia and other indications of drug dealing. While Appellants
argued that the Government’s witnesses were not credible, the jury
clearly believed their testimony. We find that the evidence was suffi-
cient to show both a drug conspiracy involving over 50 grams of
crack cocaine and possession of cocaine with intent to distribute.
III.
The jury found Eustache guilty of a conspiracy involving over 50
grams of crack cocaine beyond a reasonable doubt. Eustache argues
that the district court erred in finding him responsible for any greater
amount. The district court found, by a preponderance of the evidence,
that Eustache was responsible for at least 1.5 kilograms of crack
cocaine.
We review a district court’s calculation of the quantity of drugs
attributable to a defendant for sentencing purposes for clear error.
United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). A con-
spiracy sentence under the guidelines must be calculated on the basis
of all criminal activity undertaken in concert with others, including
conduct of others in furtherance of the conspiracy that was known to
Eustache or reasonably foreseeable to him. See United States v. Wil-
liams, 986 F.2d 86, 90 (4th Cir. 1993).
Here, the evidence showed that Eustache was involved in a con-
spiracy that transported two kilograms of powder cocaine to South
Carolina and cooked a portion of it into crack. In addition, all the evi-
dence at trial of drug sales by the conspiracy involved crack cocaine.
Thus, it could be inferred from the evidence that the conspiracy
intended to convert all two kilograms of cocaine into crack. Accord-
ingly, the district court did not err in attributing 1.5 kilograms of
crack cocaine to Eustache.
IV.
Following Miranda* warnings and his arrest, James stated, in the
*Miranda v. Arizona, 384 U.S. 436 (1966).
6 UNITED STATES v. EUSTACH
presence of Gerald and Wilkes, that he was responsible for all the
drugs found in the house pursuant to the search warrant. He now
asserts that the district court erred in admitting this statement. There
is no evidence of coercive Government conduct, and a review of the
record shows that James’ statements were completely voluntary. See
United States v. Braxton, 112 F.3d 777, 780-81 (4th Cir. 1997). Thus,
the district court did not err in denying James’ motion to suppress.
V.
Following their convictions, but before sentencing, all three Appel-
lants joined in a motion for a new trial based on newly discovered
evidence. The new evidence was a letter allegedly sent by McCants
to Ward offering to lie on Ward’s behalf in a state court murder trial.
Appellants alleged that the Government was aware of this letter and
failed to disclose it, even though it "greatly affected" McCants’ credi-
bility. In their pro se brief, Appellants challenge the denial of the
motion. In addition, they allege a conspiracy between McCants and
Ward to lie at Appellants’ trial.
The district court’s decision to deny Appellants’ motion for a new
trial is reviewed for a clear abuse of discretion. United States v. Dor-
sey, 45 F.3d 809, 817 (4th Cir. 1995). The circuit utilizes a five-part
test to determine whether a motion based on newly discovered evi-
dence should be granted: (i) is the evidence, in fact, newly discov-
ered; (ii) are the facts alleged from which the court may infer due
diligence on the part of the movant; (iii) is the evidence relied upon
not merely cumulative or impeaching; (iv) is the evidence material to
the issues involved; and (v) would the evidence probably result in
acquittal at a new trial? United States v. Chavis, 880 F.2d 788, 793
(4th Cir. 1989). In addition, viewing the motion as raising prosecu-
torial misconduct for failure to disclose the letter, Appellants must
show that they suffered prejudice from the suppression of the evi-
dence. Spicer v. Roxbury Corr. Inst., 194 F.3d 547, 559 (4th Cir.
1999).
At best, evidence of the letter would be admissible to impeach
McCants. However, McCants was already impeached by his prior
convictions, the favorable terms of his plea agreement, and his prior
inconsistent statements. Thus, any additional impeachment would
UNITED STATES v. EUSTACH 7
have been merely cumulative. Furthermore, McCants’ testimony,
while providing a bit of background to the conspiracy, did not directly
involve Appellants. Thus, even if this new evidence had been admit-
ted at trial, the result would have been the same. Therefore, the dis-
trict court did not abuse its discretion in denying the motion for a new
trial.
Appellants’ argument that McCants and Ward participated in a
scheme to fabricate evidence at Appellants’ trial was not presented to
the district court. In addition, the only evidence Appellants provide is
inconsistent statements of McCants and Ward regarding dates and
amounts of drug sales. Even assuming that this argument has not been
waived by its failure to raise it below, we find that these allegations
would not have changed the district court’s decision to deny the
motion for a new trial. Thus, we reject this claim.
VI.
Appellants next contend that the prosecutor’s opening and closing
arguments contained improper vouching and bolstering of witnesses
and referred to evidence never proved at trial. Appellants did not
object at trial, and thus, our review is for plain error.
Our close review of the prosecutor’s arguments show that most of
the objected-to statements were proper comment on the evidence. To
the extent any of the prosecutor’s statements were improper, we find
that these isolated statements did not prejudice Appellants in light of
the overwhelming evidence that they were dealing in crack cocaine.
VII.
Appellants challenge the search warrant on two grounds. First, they
argue that, because the docket sheet shows the filing of an application
for a search warrant and the return of that warrant on May 16, 2000,
the May 10 search was improperly done without a search warrant.
Next, they contend that the affidavit did not provide probable cause,
because Francois’ allegations were uncorroborated.
Addressing the first issue, the search warrant for the Florence
house and supporting affidavit are dated May 10 and refer to the
8 UNITED STATES v. EUSTACH
house itself. The May 16 docket sheet entries appear to refer to a sec-
ond search warrant for any "vehicles within the curtilage and regis-
tered to defendants and outbuildings." In addition, even if there was
only one warrant, it is possible that the docket entries were made after
the search warrant was executed. Because the docket sheet is the only
evidence presented by Appellants and it is inconclusive at best, this
issue is meritless.
Regarding the second issue, a district court’s determination of
probable cause under the Fourth Amendment is an issue of law that
we review de novo. United States v. Wilhelm, 80 F.3d 116, 118 (4th
Cir. 1996). Great deference is to be given a magistrate judge’s assess-
ment of the facts when making a determination of probable cause.
United States v. Williams, 974 F.2d 480, 481 (4th Cir. 1992). The
magistrate judge need only make a common sense determination of
whether there is a fair probability that contraband or evidence of a
crime will be found in a particular place. Id. The facts presented to
the magistrate judge need only warrant a man of reasonable caution
to believe that evidence of a crime will be found. The probable cause
standard does not demand a showing that such a belief be correct or
more likely true than false. Id. When an informant has proven to be
reliable in the past and has firsthand knowledge of the criminal activ-
ity in question, probable cause exists for issuing a search warrant. See
United States v. Chavez, 902 F.2d 259, 264 (4th Cir. 1990) (finding
that an informant’s reliability may be established by showing that the
informant previously gave tips which have proved to be correct or
that the information given has been corroborated).
Here, DEA Agent Joseph M. Koenig filed an affidavit, stating that
a "confidential and reliable source" had stated that approximately 1.5
kilograms of crack cocaine had been taken from Florida to the subject
house and cooked into crack in his presence. Another DEA agent
located the house, which was as the source described, and noticed a
car with Florida tags outside. Koenig also stated that the source had
given reliable information in the past leading to arrests and controlled
purchases. Considering all of the circumstances enumerated in the
affidavit and the great deference accorded the magistrate judge’s
assessment of probable cause, we find that there was a fair probability
that the house contained contraband. Koenig corroborated part of
what the source stated and also averred that the source was known to
UNITED STATES v. EUSTACH 9
the DEA as a reliable informant. Thus, admission of evidence found
during the search was proper.
VIII.
In his pro se brief, Joseph challenges the calculation of the drug
quantity attributable to him. This argument fails for the reasons stated
in section III above. Joseph also attempts to challenge the drug quan-
tity under Apprendi and its progeny. However, the jury found Joseph
guilty of a conspiracy involving 50 grams or more of cocaine base,
an offense which carries a maximum sentence of life. See 21 U.S.C.A.
§ 841(b)(1)(A). Because Joseph was sentenced under the maximum
statutory term for his offense, Apprendi is inapplicable. United States
v. Kinter, 235 F.3d 192 (4th Cir. 2000), cert. denied, ___ U.S. ___,
69 U.S.L.W. 3618 (U.S. Mar. 19, 2001) (No. 00-8591).
IX.
We have examined the entire record in this case in accordance with
the requirements of Anders and find no meritorious issues for appeal.
This court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel’s motion must state that a copy thereof was served on the client.
We affirm Appellants’ convictions and sentences. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED