United States v. Johnson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4014
KEVIN RODELL JOHNSON, a/k/a
Chucky,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-95-319-A)
Submitted: November 21, 1996
Decided: December 6, 1996
Before HALL, WILKINS, and HAMILTON, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Barry A. Schneiderman, KINCHELOE & SCHNEIDERMAN, Fair-
fax, Virginia, for Appellant. Helen F. Fahey, United States Attorney,
Leslie B. McClendon, 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Unpublished opinions are not binding precedent in this circuit.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:
Kevin Rodell Johnson was convicted by a jury of conspiracy to
possess with intent to distribute and to distribute more than 50 grams
of crack cocaine within the Eastern District of Virginia, 21 U.S.C.A.
§ 846 (West Supp. 1996), and was sentenced to 360 months imprison-
ment. Johnson challenges his conviction on the ground of insufficient
evidence. He also contends that the district court clearly erred in
enhancing his sentence for obstruction of justice. United States Sen-
tencing Commission, Guidelines Manual, § 3C1.1 (Nov. 1995). We
affirm.
Johnson argues that the government failed to prove that he con-
spired within the Eastern District of Virginia, as charged in the indict-
ment. Johnson did not seek a change of venue in the district court but,
following his conviction, moved for an acquittal on the ground that
the evidence showed only that he conspired within the Western Dis-
trict of Virginia. The government must establish venue by a prepon-
derance of the evidence. United States v. Newsom , 9 F.3d 337, 338
(4th Cir. 1993). When a conspiracy is carried on within several dis-
tricts, venue is proper in any district in which a conspirator has com-
mitted an overt act. United States v. Heaps, 39 F.3d 479, 482 (4th Cir.
1994). In this case, the evidence established that overt acts occurred
in both districts and we find that the district court did not err in exer-
cising jurisdiction over the case.
We also find that the evidence was sufficient to convict Johnson of
participation in the conspiracy. Numerous witnesses testified that they
bought crack from Johnson in Charlottesville, Virginia, which is in
the Western District of Virginia. Jamie Christmas testified that he and
Johnson sold crack in Charlottesville. He testified that they were both
supplied from 1991 to 1994 by Lacey Davis, a Maryland resident who
used the name "Kwan." He said that Davis usually delivered the crack
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to Charlottesville, but that on a few occasions Johnson and Christmas
met him halfway in Fredericksburg, which is in the Eastern District
of Virginia. He also testified that, in the spring of 1994, Davis called
to say that he had been arrested on Route 29 on the way to Charlottes-
ville, and would not make a scheduled delivery. Davis was in fact
arrested on Route 29 in Fauquier County, in the Eastern District of
Virginia, in April 1994. More than 500 grams of crack was recovered
from the car in which he was a passenger, and he was later convicted
of drug trafficking. Paula Washington testified that, on one occasion
during the spring of 1994, Johnson had no crack to sell her and
explained that "Kwan," his source, had been arrested on Route 29.
Johnson testified on his own behalf and admitted selling crack in
Charlottesville. He denied that Davis was his source, or that he ever
traveled to Fredericksburg with Christmas to obtain crack from Davis.
A jury's verdict must be sustained if there is substantial evidence
to support it; the evidence is viewed in the light most favorable to the
government. Glasser v. United States, 315 U.S. 60, 80 (1942). The
jury weighs the credibility of the witnesses and its determination is
not reviewable on appeal. United States v. Saunders, 886 F.2d 56, 60
(4th Cir. 1989). In this case, the jury's verdict is supported by ample
evidence that Johnson was involved in a conspiracy which was car-
ried on, in part, within the Eastern District of Virginia.
Christmas also testified that just before the trial he received two
letters from Johnson urging him not to testify. The letters were intro-
duced into evidence. The district court did not clearly err in finding,
at sentencing, that Johnson attempted to obstruct the administration of
justice by unlawfully influencing a co-defendant. Consequently, the
two-level adjustment was properly made. USSG § 3C1.1, comment.
(n.3(a)).
Accordingly, we affirm the conviction and sentence. Johnson's
request for permission to file a supplemental brief is granted. We dis-
pense 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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