United States v. Kermit Brown

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 99-4062
KERMIT C. BROWN, a/k/a Brian
Mackey, a/k/a Destruction, a/k/a
Bear,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4063
ROBERT CY MANN, a/k/a B,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4254
PERCELL A. DAVIS, a/k/a King,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(CR-98-47)
Argued: January 28, 2000
Decided: July 10, 2000
Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Mark McRoberts McMillin, THE BEREAN LAW
GROUP, P.C., Norfolk, Virginia; Benjamin Thomas Reed, Norfolk,
Virginia, for Appellants. Fernando Groene, Assistant United States
Attorney, Darryl J. Mitchell, Assistant United States Attorney, Nor-
folk, Virginia, for Appellee. ON BRIEF: Douglas Fredericks, Nor-
folk, Virginia, for Appellant Brown. Helen F. Fahey, United States
Attorney, Norfolk, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Robert Mann, Percell Davis, and Kermit Brown (collectively,
Appellants) were convicted by a jury in the United States District
Court for the Eastern District of Virginia of committing various fed-
eral narcotics and firearms violations arising out of a drug conspiracy
of which Appellants were found to be members. Appellants jointly
and individually assert several grounds for reversal on appeal, includ-
ing that the district court erred in denying Appellants' Batson chal-
lenge; that the district court should have severed Mann's trial from
that of his co-defendants; that Mann did not receive a fair trial
because the jury heard evidence relating to a drug conspiracy in
Maryland for which he had already been convicted; that the evidence
did not support Mann's convictions; that the district court erred at
2
sentencing by incorrectly determining the date from which Davis
became involved in the conspiracy; and that the district court erred in
concluding that Davis was on probation during his involvement in the
conspiracy. Finding no error, we affirm.
I.
Mann was a member of a drug conspiracy with, among others,
Richard Thomas Stitt, Davis, and Brown, that existed in Virginia and
other states (the Virginia conspiracy). In March 1996, Mann traveled
to Maryland to buy cocaine for redistribution to Stitt, among others.
Unbeknownst to Mann, however, the seller of this cocaine was coop-
erating with the police. On March 15, 1996, the police arrested Mann
in Maryland and found several kilograms of cocaine on his person, as
well as $53,050 in cash. Some or all of this money belonged to Stitt.
The Government tried Mann in the United States District Court for
the District of Maryland for, among other things, conspiracy to dis-
tribute drugs (the Maryland conspiracy). The indictment alleged that
the Maryland conspiracy existed "[f]rom on or about December 1,
1995, until on or about March 16, 1996, in the State and District of
Maryland and elsewhere." (J.A. at 183.) On February 23, 1997, Mann
pleaded guilty to the Maryland conspiracy, and on June 17, 1997, he
was sentenced to five years imprisonment.
On April 14, 1998, Mann, Davis, Brown, Stitt, and nine other co-
defendants were named in a 31-count indictment in the United States
District Court for the Eastern District of Virginia for various federal
narcotics and firearm violations related to the Virginia conspiracy,
which was alleged to have existed "[f]rom on or about 1990 . . . and
continuously thereafter."1 (J.A. at 95.) Mann was charged with
involvement in the Virginia conspiracy, as well as for the substantive
counts of possession with intent to distribute cocaine base, 21
U.S.C.A. § 841(a)(1) (West 1999) (Count 18), and distribution of
cocaine base, 21 U.S.C.A. § 841(a)(1) (Count 25).2 Davis was
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1 Eight of the other nine co-defendants pleaded guilty, and the ninth
remains a fugitive.
2 Count 18 of the indictment alleged that "[i]n or about March 1995, in
Portsmouth, Virginia," Mann, Stitt, and others"knowingly, intentionally,
3
charged with participating in the Virginia conspiracy, possession with
intent to distribute cocaine base pursuant to 21 U.S.C.A. § 841(a)(1),
distribution of cocaine base pursuant to 21 U.S.C.A.§ 841(a)(1), and
murder. Brown was charged with several counts, including participa-
tion in the Virginia conspiracy, murder in furtherance of a criminal
enterprise, use of a firearm during a crime of violence, and substan-
tive drug offenses.3 The Government tried Mann, Davis, Brown, and
Stitt together.
On May 27, 1998, Mann filed a pretrial motion to sever his trial
from that of his co-defendants. The motion to sever, which Stitt
adopted and joined, argued that severance was appropriate because
Mann would not be able to cross-examine his co-conspirators and
because he would be generally prejudiced by having to stand trial
with fellow co-conspirators. The motion to sever did not raise any
double jeopardy arguments relating to the Maryland conspiracy.
On the same day, Mann also filed a motion in limine to exclude
evidence of his Maryland conviction, arguing that Federal Rule of
Evidence 404(b) barred such evidence. As with his motion for sever-
ance, Mann's motion in limine did not argue that double jeopardy was
a basis for excluding the evidence. On June 23, 1998, at an oral hear-
ing, the district court denied Mann's motion for severance and
deferred ruling on the motion in limine.
At trial, which began on September 8, 1998, the Government
offered evidence relating to Mann's substantive drug counts, as well
as his involvement in the Virginia conspiracy. The evidence showed
that Mann supplied crack to Stitt from the spring of 1995 to the spring
of 1996. It also showed that Mann or his employees delivered crack
_________________________________________________________________
and unlawfully possess[ed] with intent to distribute . . . cocaine base."
(J.A. at 163.) Count 25 of the indictment alleged that "[i]n or about Sum-
mer 1995, in Portsmouth, Virginia," Mann "did knowingly, intentionally,
and unlawfully distribute a quantity of a mixture of. . . cocaine." (J.A.
at 169.)
3 Because Brown's only ground for appeal is a Batson challenge that
he shares with the other Appellants, we will not detail the facts relating
to Brown.
4
to Stitt in restaurant parking lots, and that Mann assisted Stitt in redis-
tributing cocaine to others through couriers. In addition, the Govern-
ment offered Robert Flood as a witness. Flood, an associate of Stitt
and Mann's, testified that he became aware in 1995 that Mann sup-
plied drugs to Stitt for redistribution and that, in the spring of 1995,
Flood personally received cocaine from Mann's courier. The Govern-
ment also offered the testimony of Tyrone Wallace, another associate
of Stitt and Mann's. Wallace testified that he saw Mann distribute
drugs to Stitt.
On October 2, 1998, prior to the testimony of Police Detective Kri-
ete, who was scheduled to testify about the Maryland conspiracy,
Mann reiterated his objection to the admission of evidence relating to
that conviction. Mann argued that Federal Rule of Evidence 404(b)
prohibited admission of that evidence. He also argued, apparently for
the first time, that the evidence of the Maryland conviction raised
double jeopardy concerns. The district court denied Mann's motion to
exclude evidence of the Maryland conviction and allowed Detective
Kriete to testify about the March 1996 controlled drug buy in Mary-
land. On October 8, 1998, approximately one month after the begin-
ning of trial, Mann filed a motion to dismiss the conspiracy charge
against him on the basis of double jeopardy.
At trial, the Government also offered evidence relating to Davis's
involvement in the Virginia conspiracy. Among the primary evidence
against Davis was the testimony of his cousin, Jason Davis (Jason),
who murdered Sinclair Simon on behalf of Stitt on October 27, 1994.
Jason, who was a distributor and enforcer for Stitt, murdered Simon
because Stitt was concerned that Simon would confess to his and
Stitt's involvement in another murder. Jason testified that Davis went
with him to meet Simon under the pretense of picking up drug pro-
ceeds. After Jason and Davis met Simon, Jason drove them to a loca-
tion where drugs were supposed to be buried. Jason left the car with
Simon, shot Simon, and then ran back to the car and ordered Davis
to drive away. Davis drove back to Jason's house and helped him
clean the vehicle after Jason informed Davis that he had killed Simon.
Jason testified that Davis did not know beforehand that Jason planned
to murder Simon. Another Government witness, Shawn Davis, testi-
fied that Davis had indicated to him that Davis was aware that Jason
intended to kill Simon before it happened. The Government offered
5
this evidence to show that Davis was a member of the conspiracy in
October 1994.
The jury found Mann guilty of conspiracy, possession with intent
to distribute cocaine base, and distribution of cocaine base. The jury
acquitted Davis of murder, but it found him guilty of conspiracy, pos-
session with intent to distribute cocaine base, and distribution of
cocaine base. The jury convicted Brown on all four counts with which
he was charged.
Mann, Davis, and Brown were sentenced at separate hearings.4 At
sentencing, the district court granted Mann's motion to dismiss his
conviction for the Virginia conspiracy count, finding that the Virginia
conspiracy was the same as the Maryland conspiracy for which Mann
was earlier convicted in 1997. The district court sentenced Mann to
concurrent 252-month sentences on the remaining counts, to be
served concurrently with his sentence for the Maryland conviction.
The district court sentenced Davis to 432 months imprisonment on the
conspiracy count and to concurrent 240-month sentences on the other
counts. In arriving at Davis's sentence, the district court followed the
recommendation from Davis's presentence report that he receive two
additional criminal history points because Davis was under a criminal
justice sentence during his participation in the conspiracy. The district
court also added one criminal history point based upon Davis's prior
misdemeanor conviction for failure to appear, which, according to the
presentence report, subjected Davis to one year of unsupervised pro-
bation. Brown was sentenced to two life terms and 240 months
imprisonment, each running concurrently, and sixty months imprison-
ment to run consecutively.
On appeal, Appellants jointly and individually raise several issues.
Appellants argue that the district court erred in rejecting their Batson
challenges. Mann argues that the district court erred in failing to sever
his trial from that of his co-defendants,5 and that he was prejudiced
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4 Stitt, who is not a party to this appeal, was found guilty of several
charges, including capital murder, and he was sentenced to death.
5 Mann, in his brief and at oral argument, could not articulate how the
district court's failure to sever the trial specifically prejudiced him. Con-
sequently, at oral argument, we requested that Mann file a supplemental
letter detailing exactly how he was prejudiced by the joint trial.
6
by the district court's decision to admit evidence related to his subse-
quent bad acts arising from the Maryland conspiracy for which he had
already been convicted. Mann also argues that the evidence was so
conflicted that no reasonable jury could have convicted him and that
the district court erred at sentencing in determining the actual weight
of the drugs that should be attributed to him pursuant to U.S. Sentenc-
ing Guidelines Manual § 2D1.1(c) (1998). Davis argues that the dis-
trict court incorrectly determined the date that Davis began his
involvement in the conspiracy, that the district court erred in adding
one criminal history point based upon his misdemeanor conviction for
failure to appear, and that the district court erred in concluding, pursu-
ant to U.S.S.G. § 4A1.2, that Davis was under a criminal justice sen-
tence during his participation in the conspiracy. We address each
issue in turn.
II.
Appellants first argue that the district court erred in denying their
Batson challenge. During jury selection, Appellants raised a Batson
challenge based upon the Government's peremptory strikes, arguing
that the Government struck a disproportionate number of black
veniremen and that the Government's explanations for its strikes were
not credible. We review a district court's denial of a Batson challenge
under the clearly erroneous standard. See United States v. Grimmond,
137 F.3d 823, 833 (4th Cir.), cert. denied, 525 U.S. 850 (1998).
In asserting a Batson challenge, "[a] defendant has the burden of
establishing a prima facie case of discrimination by the prosecutor in
the selection of the jury. If the defendant makes a showing sufficient
to infer discrimination, the burden shifts to the prosecutor to provide
neutral explanations for his use of peremptory challenges."6 United
States v. Lane, 866 F.2d 103, 104 (4th Cir. 1989) (internal citations
omitted). "If the prosecutor satisfies this requirement, the burden
shifts back to the defendant to prove that the explanation given is a
pretext for discrimination. The ultimate burden always rests with the
opponent of the challenge to prove `purposeful discrimination.'"
Grimmond, 137 F.3d at 834 (internal citations omitted). "The Govern-
_________________________________________________________________
6 In the present case, it is undisputed that Appellants established a
prima facie case.
7
ment's explanation need not be persuasive, or even plausible, as long
as it is neutral." Id. (internal quotation marks omitted). The proffered
reason "need not be worthy of belief or related to the issues to be tried
or to the prospective juror's ability to provide acceptable jury ser-
vice." Jones v. Plaster, 57 F.3d 417, 420 (4th Cir. 1995).
In the present case, the jury panel had sixty-six individuals, of
whom sixteen were black. The Government exercised twenty-two
strikes, ten of which were used to strike black veniremen. Appellants
made a Batson challenge, and the district court asked the Government
to justify each of its strikes. The Government responded with expla-
nations for its strikes, several of which are specifically contested in
Appellants' brief.
The gist of Appellants' arguments is that the Government's expla-
nations were not believable and that similarly situated white venire-
men were not struck. The Government's strikes were based, among
other things, upon two venireperson's problems with the death pen-
alty, a venireperson's experience working with troubled children and
teenagers, a spouse's employment in a correctional institution, a
venireperson's previous addiction to drugs, a venireperson's quiet and
soft-spoken demeanor, and addiction in a venireperson's family. Each
of these reasons, on its face, is race-neutral. See Grimmond, 137 F.3d
at 834 (upholding strike based upon the venireperson's age); Mat-
thews v. Evatt, 105 F.3d 907, 918 (4th Cir. 1997) (rejecting Batson
challenge even though the proffered reason -- equivocation about the
venireperson's ability to impose the death penalty-- was shared by
other venirepersons and even though all of the prosecutor's strikes
were used on black persons); United States v. Bynum, 3 F.3d 769, 772
(4th Cir. 1993) (affirming district court's rejection of Batson chal-
lenge where the prosecutor's explanations were that a venireperson
had the same last name as someone the prosecutor had prosecuted
from the same town; that a venireperson was unemployed and had
trouble with transportation to court; and that a venireperson was a
young, single mother who might be too sympathetic with the defen-
dant).
Appellants attempt to show pretext with respect to several of the
strikes on the ground that similarly situated white veniremen were not
struck. Although this type of discrepancy can be evidence of pretext,
8
it certainly does not, by itself, show pretext. See Matthews, 105 F.3d
at 918 (stating that "Batson is not violated whenever two veniremen
of different races provide the same responses and one is excused and
the other is not"); Lane, 866 F.2d at 106 (rejecting argument that "the
facially neutral reason was merely pretextual as evidenced by the fact
that the prosecutor had earlier accepted a white female juror who, like
Lucas, had not finished high school and had struck Robinson, who
had 14 years of education"). The district court, which had the benefit
of seeing the veniremen in person, and, thus, had the ability to assess
the credibility of the Government's explanations, carefully scrutinized
the Government's responses and concluded that they were not pretex-
tual. On the record before us, we find no reason to disagree.7
III.
Mann argues on appeal that the district court abused its discretion
in refusing to sever his trial from that of his co-defendants because,
he asserts, he should not have been tried with members of a conspir-
acy for which he had already been convicted. Mann also argues that
he was prejudiced by having to stand trial with Stitt, a capital murder
defendant, against whom evidence of brutal murders was offered. We
disagree.
The grant or denial of a motion for severance is within the sound
discretion of the district court, and therefore, we review its decision
for abuse of discretion. See United States v. Smith, 44 F.3d 1259,
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7 Appellants argue that the district court appeared skeptical as to some
of the Government's proffered explanations. The district court stated, for
example, that two of the Government's strikes, which were each based
upon opposition to the death penalty, were "marginal" because those
jurors also indicated an ability to sit impartially. (J.A. at 356.) The dis-
trict court stated that "[o]ut of all of these 22 strikes [the Government
has] provided reasons for making these strikes. It's only maybe two of
these strikes here that one might say they were marginal." (J.A. at 365.)
The district court explained, however, that although these particular
strikes were marginal, they nevertheless were supported by race neutral
reasons. The district court explicitly found that Appellants had not shown
pretext, stating that "I don't have any pretext or discrimination here, so
I don't have a basis under Batson to strike or reverse your strikes." (J.A.
at 366.) We cannot say that the district court clearly erred in this finding.
9
1267 (4th Cir. 1995); United States v. Santoni , 585 F.2d 667, 674 (4th
Cir. 1978). Federal Rule of Criminal Procedure 14 provides that "the
court may . . . grant a severance of defendants" if "it appears that a
defendant or the government is prejudiced by a joinder of . . . defen-
dants . . . for trial together." Fed. R. Crim. P. 14. However, "[b]arring
special circumstances, individuals indicted together should be tried
together." United States v. Brugman, 655 F.2d 540, 542 (4th Cir.
1981). There is a presumption that co-defendants indicted together
will be tried together unless "a joint trial would be so unfairly prejudi-
cial that a miscarriage of justice would result." United States v. Wil-
liams, 10 F.3d 1070, 1080 (4th Cir. 1993). In applying this
presumption, the mere fact that evidence against one or more defen-
dants is stronger or more inflammatory than the evidence against
other defendants does not warrant severance. See United States v.
Hall, 93 F.3d 126, 131 (4th Cir. 1996). Moreover, "[a] defendant
making a motion for severance pursuant to Rule 14 has the burden of
demonstrating a strong showing of prejudice, and it is not enough to
simply show that joinder makes for a more difficult defense." United
States v. Goldman, 750 F.2d 1221, 1225 (4th Cir. 1984) (internal cita-
tions omitted).
In the present case, Mann argues that he was prejudiced because
most of the evidence offered at trial -- including evidence relating to
his Maryland conviction, evidence of drug transactions in which he
was not a participant, and evidence relating to Stitt's capital murder
charges -- would not have been admissible against him had the dis-
trict court severed the trial. Our examination of the record, however,
leads us to the conclusion that the district court did not abuse its dis-
cretion in refusing to sever the trial.8 As noted above, "[a] defendant
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8 Mann also contends that the district court erred in refusing to sever
the trial from the beginning on double jeopardy grounds. We note, how-
ever, that this was not a situation in which the district court simply
ignored the double jeopardy issue from the outset in refusing to sever the
trial. Indeed, Mann did not raise the double jeopardy issue until well after
the trial had already begun and over four months after filing his motion
to sever. Mann's arguments for severance, both in his motion and at the
oral hearing before the district court, relied only upon generalized
notions of prejudice stemming from having to stand trial with co-
conspirators, and not from any specific prejudice arising from double
10
making a motion for severance pursuant to Rule 14 has the burden of
demonstrating a strong showing of prejudice." 9 Goldman, 750 F.2d at
1225. Mann fails to satisfy this burden because there is no indication
that the jury could not compartmentalize the evidence as it related to
the different defendants. See United States v. Ford, 88 F.3d 1350,
1361 (4th Cir. 1996). To the contrary, the jury's ability to evaluate the
separate evidence against each co-defendant was demonstrated by its
acquittal of Davis on the murder count. See id. (concluding that the
jury "demonstrated its ability to sift through the evidence and draw
conclusions based on the evidence relevant to each defendant" when
it acquitted some defendants on some counts). Moreover, the district
court explicitly instructed the jury that in order to convict Mann on
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jeopardy grounds. Although "the trial judge has a continuing duty at all
stages of the trial to grant a severance if prejudice does appear," Schaffer
v. United States, 362 U.S. 511, 516 (1960), it is difficult to say that the
district court abused its discretion in weighing concerns of judicial econ-
omy, along with the normal presumption of a joint trial, against Mann's
burden to show specific prejudice when Mann did not articulate any spe-
cific prejudice until after the fact, and, indeed, has struggled to do so
even on appeal.
9 To the extent that Mann argues that the mere fact that the conspiracy
count against him was subsequently dismissed automatically shows that
severance was warranted because of the inherently prejudicial nature of
the proceedings, we disagree. Absent a showing of actual prejudice, the
mere fact of a subsequent dismissal of a conspiracy count, standing
alone, does not necessarily call for severance. We have previously
affirmed substantive convictions following the dismissal of a conspiracy
count after the start of trial. See United States v. Jarvis, 7 F.3d 404, 413-
15 (4th Cir. 1993) (concluding that conspiracy prosecution against Jarvis
constituted double jeopardy but, nevertheless, affirming the defendant's
remaining convictions on substantive drug offenses); see also Schaffer v.
United States, 362 U.S. 511, 513-14 (1960) (affirming district court's
refusal to sever trial after conspiracy count was dismissed for failure of
proof before submission to the jury because appellants could not show
prejudice); cf. United States v. Ford, 88 F.3d 1350, 1361 (4th Cir. 1996)
(affirming district court's refusal to sever trial after jury acquitted defen-
dants on conspiracy charge because there was sufficient evidence for the
jury to consider the conspiracy count and there was no evidence that the
jury could not compartmentalize the evidence as it related to the different
defendants).
11
the substantive drug counts, the Government had to prove each of the
essential elements of those counts beyond a reasonable doubt. See
Zafiro v. United States, 506 U.S. 534, 540-41 (1993) (concluding that
the district court did not abuse its discretion in denying severance
where, among other things, appellants could not show specific preju-
dice and the district court "properly instructed the jury that the Gov-
ernment had the burden of proving beyond a reasonable doubt that
each defendant committed the crimes with which he or she was
charged" (internal quotation marks omitted)). Mann has not given us
any reason to believe that the jury disregarded this instruction by
improperly considering Stitt's capital charges or the separate conspir-
acy count against Mann when it convicted Mann on the substantive
counts.10 See Weeks v. Angelone, 120 S. Ct. 727, 733 (2000) ("A jury
is presumed to follow its instructions.").
Accordingly, because there is no indication in the record that the
jury could not separate the evidence relating to the capital case
against Stitt from the substantive drug offenses against Mann, we can-
not conclude that Mann was unfairly prejudiced from having to stand
trial with his co-defendants.11 We, therefore, conclude that the district
court did not abuse its discretion in refusing to sever the trial.
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10 Mann also fails to articulate any actual prejudice that he suffered
from having to stand trial with a capital co-defendant. Mann relies,
instead, upon broad arguments concerning the generally prejudicial
nature of a capital trial. We decline to adopt a per se rule, as Mann
appears to seek, that every trial involving both capital and non-capital
defendants is so inherently prejudicial as to warrant severance even
absent a showing of any specific prejudice. Cf. United States v. Tipton,
90 F.3d 861, 868 n.1 (4th Cir. 1996) (noting that co-defendant Sandra
Reavis, a non-capital defendant, was tried together with capital defen-
dants Tipton, Johnson, and Roane); United States v. Reavis, 48 F.3d 763,
766-68 (4th Cir. 1995) (affirming district court's refusal to sever trial of
Sandra Reavis from that of co-defendants Tipton, Johnson, and Roane on
the basis that Roane would have offered favorable testimony at a sepa-
rate trial because Reavis failed to make an "affirmative demonstration
that she was deprived of a fair trial by the denial of her severance
motion").
11 Mann maintains that severance was appropriate because "conserva-
tively some 90-95% of the evidence was inadmissible as to Mann, were
12
IV.
Mann next argues that the district court erred by admitting evi-
dence related to his Maryland conviction pursuant to Federal Rule of
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he being tried on only the substantive counts without the conspiracy."
(Appellant's Br. at 27.) See Zafiro v. United States, 506 U.S. 534, 539
(1993) (recognizing that a risk of prejudice "might occur when evidence
that the jury should not consider against a defendant and that would not
be admissible if a defendant were tried alone is admitted against a code-
fendant"). Mann, however, overstates his case. Indeed, much of the evi-
dence supporting his substantive convictions would have been admissible
against him at a separate trial, including Flood's testimony that Flood
received cocaine from Mann's courier in the spring of 1995; Wallace's
testimony that at some point in 1995, he saw Mann give Stitt a duffel bag
that contained two "keys" of cocaine (J.A. at 729.); Ivan Harris's testi-
mony that he, Stitt, Flood, and Sam Hucks went to a go-go bar to procure
drugs, and that Harris observed Mann give Stitt a bag full of cocaine
base; and Jason Ortega's testimony that Mann and Stitt taught him how
to "cook" cocaine powder into cocaine base. Likewise, the evidence
relating to the Maryland conspiracy would also have been admissible at
a separate trial. See infra part IV (concluding that the district court did
not err in admitting evidence against Mann relating to the Maryland con-
spiracy). Accordingly, we cannot agree with Mann's assertion that he
was unfairly prejudiced by the admission of most of the evidence against
him at his joint trial.
Mann, in his supplemental letter, lists both Harris's and Flood's testi-
mony as "evidence which counsel for Mr. Mann believes would not have
been admitted into evidence at trial had this case been severed at trial
from that of the co-defendants." (Letter from Mark M. McMillin to this
Court, dated Feb. 1, 2000.) However, Mann does not articulate any rea-
son why this evidence would be inadmissible at a separate trial, nor can
we see any basis from which to exclude this evidence. Even if we con-
strued Mann's laundry-list reference to this evidence as asserting Federal
Rule of Evidence 404(b) as a ground for exclusion, we believe that the
evidence would be admissible, and, indeed, would not be Rule 404(b)
evidence at all, because it constitutes direct evidence of the conduct
charged. We also note that Mann's letter does not challenge Wallace's
testimony concerning the cocaine in the duffel bag or Ortega's testimony
that Mann and Stitt taught Ortega how to cook powder cocaine into
cocaine base.
13
Evidence 404 because, he asserts, subsequent bad-act evidence is
inadmissible. Mann also contends that the district court erred because
the Government offered evidence relating to his Maryland conviction
only for the improper purpose of showing Mann's bad character. The
Government responds that it offered the evidence not as character evi-
dence, but as evidence of the agreement and relationship between
Mann and Stitt that was intrinsic to the charged offenses. The Govern-
ment also argues that the evidence is of prior bad acts, rather than
subsequent bad acts, because the conspiracy continued beyond the
time period of the Maryland conviction, and, in any case, that evi-
dence of subsequent bad acts is admissible.
We review the district court's admission of evidence pursuant to
Federal Rule of Evidence 404 for abuse of discretion. See United
States v. Powers, 59 F.3d 1460, 1469 (4th Cir. 1995). Federal Rule
of Evidence 404 permits the admission of "[e]vidence of other crimes,
wrongs, or acts" for purposes other than "to prove the character of a
person in order to show action in conformity therewith," such as
"proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident." Fed. R. Evid. 404(b). The
district court admitted the evidence of Mann's Maryland conviction,
concluding that "it's relevant, it's probative. It may be introduced to
show the state of mind, plan, pattern, any number of things here, so
the court can't find any plausible reason to exclude the testimony."
(Tr. at 3991.)
We have stated that Rule 404(b) evidence is admissible under the
following circumstances:
[W]e hold that evidence of prior acts becomes admissible
under Rules 404(b) and 403 if it meets the following
criteria: (1) the evidence must be relevant to an issue, such
as an element of an offense, and must not be offered to
establish the general character of the defendant. In this
regard, the more similar the prior act is (in terms of physical
similarity or mental state) to the act being proved, the more
relevant it becomes. (2) The act must be necessary in the
sense that it is probative of an essential claim or an element
of the offense. (3) The evidence must be reliable. And (4)
14
the evidence's probative value must not be substantially out-
weighed by confusion or unfair prejudice . . . .
United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997).12 We con-
clude that the Government properly articulated a basis for admitting
the evidence in question. In the present case, the Government offered
evidence that Mann traveled to Maryland in March 1996 with Stitt's
money to buy drugs on behalf of Stitt. This evidence was relevant to
the substantive drug counts because it established, among other
things, Mann's knowledge and intent to distribute drugs. See United
States v. Whaley, 786 F.2d 1229, 1232 (4th Cir. 1986) ("The mere fact
that the `other acts' at issue occurred after the events charged in the
indictment does not render them irrelevant . . . . Subsequent conduct
may be highly probative of prior intent. That one has thought in a par-
ticular illegal way over a period of time is evidence that one's thought
patterns had already been so developed and were so operating on
another previous occasion."). We have little difficulty concluding that
the evidence relating to Mann's Maryland conviction was probative
and that it was not offered for the impermissible purpose of showing
Mann's bad character. Likewise, this evidence was essential to estab-
lish the elements of Mann's substantive drug charges, which alleged
that Mann "knowingly" and "intentionally" possessed and distributed
drugs.13 This is particularly true in light of Mann's efforts to portray
himself as merely a friend of Stitt's who did not participate in any
drug deals. (See, e.g., Appellant's Br. at 35 (arguing that "Mann only
sold cars to Stitt and was not part of his drug business"); 12 (arguing
that although Mann received a large amount of cash in a shoebox,
Mann did not look to see what was in the box).) Nor can we say that
the district court abused its discretion in determining that the proba-
tive value of this evidence was not substantially outweighed by its
_________________________________________________________________
12 Seizing upon our use of the word "prior acts" in describing Rule
404(b) admissibility, Mann argues that Rule 404(b) does not permit evi-
dence of subsequent acts. However, on several other occasions, we have
admitted evidence of subsequent bad acts and not just prior bad acts. See
United States v. Whaley, 786 F.2d 1229, 1232 (4th Cir. 1986); United
States v. Hadaway, 681 F.2d 214, 217-18 (4th Cir. 1982).
13 Mann does not contest the reliability of the evidence. (See Tr. at 3987
(Mann's counsel, stating that "[t]here's no question it would be reli-
able").)
15
prejudicial nature. Having reviewed the record, and given the highly
probative nature of this evidence, we cannot conclude that the district
court abused its discretion in allowing the Government to present this
evidence.
V.
Mann also argues that the evidence was so conflicted that no rea-
sonable jury could have convicted him. In essence, Mann argues that
there was insufficient evidence to sustain his convictions because
there was contradictory evidence. In reviewing the sufficiency of the
evidence against Mann, we will sustain the verdict"if there is sub-
stantial evidence, taking the view most favorable to the Government,
to support it." Glasser v. United States, 315 U.S. 60, 80 (1942).
"[S]ubstantial evidence 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. Bur-
gos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).
In the present case, there was substantial evidence to support
Mann's convictions. Flood testified, for example, that he became
aware in 1995 that Mann supplied drugs to Stitt for redistribution and
that, in the spring of 1995, Flood received cocaine from Mann's cou-
rier. Similarly, Wallace testified that at some point in 1995, he saw
Mann give Stitt a duffel bag that contained two"keys" of cocaine.
(J.A. at 729.) Ivan Harris testified that, in the summer of 1995, he,
Stitt, Flood, and Sam Hucks went to a go-go bar to procure drugs, and
that Harris observed Mann give Stitt a bag full of cocaine base. And,
Jason Ortega testified that Mann and Stitt taught him how to "cook"
cocaine powder into cocaine base. Viewing this evidence in the light
most favorable to the Government, we find meritless Mann's argu-
ment that this evidence is insufficient to support his convictions.
VI.
Finally, Mann argues that the district court erred in attributing 1.5
kilograms of cocaine base to Mann under Count 18 and ten kilograms
of cocaine under Count 25 for purposes of setting Mann's base
offense level pursuant to U.S.S.G. § 2D1.1. We review the district
court's findings under the clearly erroneous standard. See United
16
States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). In reviewing
the district court's application of the Sentencing Guidelines, we give
"due regard to the opportunity of the district court to judge the credi-
bility of witnesses." 18 U.S.C.A. § 3742(e) (West Supp. 2000).
In the present case, Detective Tammy Early testified at Mann's
sentencing that Mann should be responsible for 1.5 kilograms of
cocaine base for Count 18 and ten kilograms of cocaine for Count 25.
The district court attributed these amounts to Mann, overruling
Mann's objection. The district court made explicit findings and
described its reasoning. For example, with respect to Count 18, it
stated that
[t]he court finds that a minimum of three kilograms were
involved in the possession with intent to distribute in count
18. The court does, in fact, credit the testimony that in
March 1995 on at least three separate occasions this defen-
dant was involved in the possession with intent to distribute
of at least three kilograms of crack cocaine.
The government is taking the most conservative view of
the matters here. But even a more conservative view of the
testimony is that at least 1.5 kilograms were in fact pos-
sessed with intent to distribute. The record reflects far more
than that. The presentence report in paragraph 102 reflects
at least nine kilograms of crack cocaine involved. Taking
the most conservative view, the court would find as a matter
of fact that at least 1.5 kilograms or more were certainly
involved in the possession with intent to distribute on that
occasion.
(J.A. at 778-79.) The district court also made explicit findings with
respect to Count 25 in attributing ten kilograms of cocaine to Mann.
Our reading of the sentencing transcript indicates that the court
clearly considered the testimony of the case agent at the sentencing
hearing, heard all of the evidence and testimony at trial, and examined
the presentence report before making its factual findings. For that rea-
son, we cannot conclude that the district court clearly erred in its find-
ings as to the relevant drug weights attributable to Mann.14
_________________________________________________________________
14 Mann, in his brief, does not articulate why or how the district court
might have erred in its findings. He also does not point to any contrary
evidence that would support a lesser amount of drugs.
17
Accordingly, we affirm the district court's findings regarding drug
amounts attributable to Mann.15
VII.
Davis argues on appeal that there is no evidence that he was a
member of the conspiracy before April 1995. In particular, Davis
argues that the district court erred at sentencing in concluding that he
was a member of the conspiracy in October 1994 based upon his par-
ticipation in Simon's murder because the evidence showed that Davis
was unaware that his cousin, Jason, would murder Simon until it hap-
pened. Davis concedes that he was present during that murder and
that he drove Jason from the murder and helped Jason clean the car
after the murder. He argues, however, that he did not know about the
murder beforehand, and that even if he had, mere presence and con-
sent is not enough to sustain his participation in the conspiracy. The
Government responds that the evidence establishes that Davis helped
Jason murder Simon on behalf of Stitt in October 1994 and that this
constitutes participation in the conspiracy. We affirm the district
court's finding that Davis was a member of the conspiracy in October
1994.
We review the district court's factual findings under the clearly
erroneous standard. See United States v. Daughtrey, 874 F.2d 213,
217 (4th Cir. 1989). In reviewing the district court's application of the
Sentencing Guidelines, we give "due regard to the opportunity of the
district court to judge the credibility of witnesses." 18 U.S.C.A.
§ 3742(e) (West Supp. 2000). The district court stated that
_________________________________________________________________
15 Mann appears to argue that the district court was collaterally estop-
ped by the Maryland court's findings as to drug weights for the relevant
conduct, and, therefore, the district court was bound by the Maryland
court's findings as to drug weights. Mann does not, however, articulate
what the Maryland court's findings were as to drug weights, nor does he
indicate how the district court's findings are different from the Maryland
court's findings or how the result might be different if we accepted the
Maryland court's findings. Moreover, it does not appear that Mann raised
the collateral estoppel issue below. (J.A. at 1063 (describing, in presen-
tence report, Mann's objections to drug weight as"all the amounts of
drug weights were simply erroneous and unsupported by the evidence").)
18
[t]he court would find that the defendant was a participant
in this conspiracy as early as October 27th, 1994. The court
has already previously made a finding that the court didn't
find the defendant credible with respect to his role in the
Sinclair Simon murder. So the court would find that as early
as October 27th, 1994 he was a participant, and continu-
ously thereafter during these periods of probation he was
involved in this conspiracy. The court believes that is sup-
ported by the testimony in the record regarding the various
violent acts that took place, his participation in driving Mr.
Davis around.
(J.A. at 928.)
The relevant testimony on this issue came from two witnesses,
Jason and Shawn Davis. Jason testified that he, Davis, and Simon
drove out to the railroad tracks and that he and Simon left the car pur-
portedly to dig for buried drugs. Jason shot Simon, got back in the car
where Davis was waiting, and they drove off. Jason testified that
Davis asked where Simon was, and that Jason told Davis that he
killed him. Upon reaching Jason's home, Davis and Jason cleaned the
inside of the truck, removing paper, bottles and other trash. Shawn
testified that Jason and Davis visited him while he was in prison and
that Davis told Shawn about Simon's death. Davis indicated to Shawn
that he was aware that Jason intended to kill Simon before Jason
pulled the trigger, that Davis witnessed the murder, and that he and
Jason drove away from the murder scene together.
Based upon Jason and Shawn's testimony, it is undisputed that
Davis was present at the murder, that he drove Jason from the murder
scene after being told about the murder, that he helped Jason clean the
car after the murder, and that Jason committed the murder on behalf
of Stitt and the conspiracy. Moreover, Jason's testimony suggests that
even if Davis was otherwise unaware of the pending murder, he at
least believed that he, Jason, and Simon were driving out to retrieve
drug money. (See J.A. at 508 ("I told[Simon that they were going]
to pick up some drug money" while Davis was in the back seat.).)
And, Shawn testified that Davis told him that he knew about the mur-
der in advance. From this testimony, the district court had a sufficient
basis from which to conclude that Davis knew about the murder in
19
advance, that he helped Jason commit the murder by driving him
away from the murder scene, and that this incident constituted an
overt act in furtherance of the conspiracy as of October 27, 1994.
Thus, although "mere knowledge, acquiescence, or approval of a
crime is not enough to establish that an individual is part of a conspir-
acy to distribute drugs," nor is "mere presence at the scene of a distri-
bution of drugs" sufficient, United States v. Pupo, 841 F.2d 1235,
1238 (4th Cir.1988) (en banc), the district court did not clearly err in
finding that Davis's version of events was not credible and that
Davis's conduct was "more consistent with participation than [it was]
with mere acquiescence," id. (stating that the jury could have properly
concluded that the defendant participated in the conspiracy when the
evidence showed that he carried a tote bag that contained drugs and
remained in a motel room with a co-conspirator for three days until
they received a call informing them that the transaction was com-
plete).
VIII.
Davis next argues that the district court erred in concluding that he
was on a term of probation as a result of his May 3, 1996 misdemea-
nor conviction for failure to appear. Davis's sentence reflects a Crimi-
nal History Category III, with four criminal history points.16 The
district court gave Davis one criminal history point for each of his
prior convictions for attempted grand larceny and failure to appear,
and two additional criminal history points based upon the fact that
Davis was under a criminal justice sentence during his participation
in the conspiracy. Davis argues that the district court erred in giving
him a criminal history point based upon his prior misdemeanor con-
viction for failure to appear because, although he was on a twelve-
month term of "good behavior" as a result of that conviction, he was
not under a term of probation that would enable the conviction to be
counted against him under U.S.S.G. § 4A1.2(c). Therefore, Davis
asserts, his sentence should reflect only three criminal history points,
rather than four, and his Criminal History Category should be lowered
to Category II.
_________________________________________________________________
16 The original presentence report reflected five criminal history points,
but it was later revised to reflect only four points.
20
Section 4A1.2 of the Sentencing Guidelines provides that sentences
for some prior convictions, such as contempt of court or failure to
appear, are counted for guideline purposes only if"the sentence was
a term of probation of at least one year or a term of imprisonment of
at least thirty days." U.S.S.G. § 4A1.2(c)(1). In the present case, the
district court adopted the presentence report's conclusion that Davis
was subject to "$50 fine, $29 costs, 60 days suspended with 12
months good behavior" as a result of his conviction for failure to
appear, and, therefore, that Davis was under a "term of probation" for
purposes of § 4A1.2. (J.A. at 973.) Davis objected, arguing that "good
behavior" is not the same as probation.17 We review questions involv-
ing the legal interpretation of the Sentencing Guidelines de novo. See
United States v. France, 164 F.3d 203, 209 (4th Cir. 1998), cert.
denied, 527 U.S. 1010 (1999).
The issue before us is whether a "good behavior" requirement
imposed as a result of a suspended sentence for a misdemeanor con-
viction is a "term of probation" for purposes of U.S.S.G. § 4A1.2.
Under Virginia law, "the court may suspend imposition of sentence
or suspend the sentence in whole or part and in addition may place
the accused on probation under such conditions as the court shall
determine." Va. Code. Ann. § 19.2-303 (Michie 1995). The court
"may at any time before the sentence has been completely served,"
suspend the sentence, place the person on probation, or otherwise
modify the sentence. Id. Virginia law also allows the trial court to
revoke a suspended sentence for any act that occurs within the proba-
tion period, or, if no probation period is listed, within the period of
suspension fixed by the court. See Va. Code Ann. § 19.2-306 (Michie
1995). If no period of suspension is fixed by the court, then the trial
court may revoke the suspended sentence "within the maximum
period for which the defendant might originally have been sentenced
to be imprisoned." Id. For a Class I misdemeanor such as failure to
_________________________________________________________________
17 Davis offered a certified copy of his conviction, in which the box
marked "probation" is not checked; rather, the form states simply that
Davis is sentenced to a $50 fine and a sixty-day suspended sentence
"conditioned upon being of good behavior and keeping the peace." (J.A.
at 219.) The form does not state when the suspension of the sentence will
end, nor does it describe the length of the "good behavior" requirement.
21
appear, the maximum period of imprisonment is one year. See Va.
Code Ann. § 18.2-11 (Michie 1996).
Davis argues that Virginia law distinguishes between a suspension
of sentence and probation, and, therefore, a suspended sentence,
standing alone, is not a "term of probation" for purposes of § 4A1.2.
It is true that Virginia law treats a suspension of sentence as a distinct
concept from probation. See Va. Code Ann.§ 19.2-303 (providing
that the court may suspend a sentence and may also place the defen-
dant on probation). However, the Supreme Court of Virginia, in Dyke
v. Commonwealth, 69 S.E.2d 483 (Va. 1952), has previously indi-
cated that a suspended sentence predicated upon"good behavior" is
functionally the same as unsupervised probation. 18 See id. at 486 (rec-
ognizing that "a distinction is made in both sections 53-273 and 53-
275 between suspension of sentence and probation[because a]
[s]entence may be suspended without putting the defendant on proba-
tion," but noting that "terms and conditions[such as requiring good
behavior as a condition of a suspended sentence] are probation . . .
in the sense that they require the defendant to observe a specified
course of conduct; but they are not the supervised probation referred
to in the statute"); cf. Anderson v. Commonwealth, 490 S.E.2d 274,
277 (Va. Ct. App. 1997) (stating that although "[t]he law of Virginia
distinguishes the suspension of a sentence from the imposition of pro-
bation . . . the conditions imposed in probation and those imposed in
the suspension of sentences need not be analyzed in different con-
texts. The common objective of such conditions is to protect society
and to promote rehabilitation of the convict. Both probation and the
_________________________________________________________________
18 In Dyke v. Commonwealth, 69 S.E.2d 483 (Va. 1952), the Supreme
Court of Virginia addressed whether the trial court had jurisdiction to
revoke the suspension of a sentence based upon the defendant's convic-
tion within twelve months of the suspension where the suspension was
conditioned upon good behavior but did not expressly require probation
or describe the length of the "good behavior" requirement. See id. at 484.
Dyke involved an interpretation of Va. Code§ 53-272, the predecessor
statute to § 19.2-303. See Singleton v. Commonwealth, 400 S.E.2d 205,
207 (Va. Ct. App. 1991) (noting that § 19.2-303 replaced § 53-272). Sec-
tion 53-272 provided that the trial court "may suspend the imposition or
the execution of the sentence . . . and may also place the defendant on
probation under the supervision of a probation officer." Dyke, 69 S.E.2d
at 484.
22
suspension of a sentence involve the trial court's discretionary, and
conditional, release of a convict from the service of a sentence within
the penal system.").
Other courts, addressing the very issue before us, have concluded
that a sentence of unsupervised conditional release, predicated upon
good behavior, constitutes a term of unsupervised probation for pur-
poses of § 4A1.2, notwithstanding the absence of specific language in
the release referring to a term of probation. See Harris v. United
States, 204 F.3d 681, 682 (6th Cir. 2000) (noting that "[a]lthough Mr.
Harris was not sentenced to supervised probation, he was sentenced
to" a suspended sentence that was conditioned upon no further con-
victions, and stating that this form of conditional discharge "is the
functional equivalent of unsupervised probation" (internal quotation
marks omitted)); United States v. Labella-Szuba , 92 F.3d 136, 138 (2d
Cir. 1996) (stating that "[a]lthough defendant's sentence did not
include active supervision, her sentence did include a supervisory
component in that [the court] retained the power to revoke her condi-
tional discharge sentence" and, thus, her conditional discharge was
the functional equivalent to unsupervised probation); United States v.
Caputo, 978 F.2d 972, 976-77 (7th Cir. 1992) (stating that
"[p]robation means that the convicted defendant is not incarcerated
but must comply with various conditions set by the sentencing court
and monitored by a probation officer. . . . Conditional discharge is the
same except that there is no probation officer. . . . It is probation with-
out the probation officer and that is a distinction without a difference
so far as the purposes of the guideline exception is concerned").19 But
cf. United States v. Johnson, 43 F.3d 1211, 1216 (8th Cir. 1995) (con-
cluding that a stay of imposition of sentence conditioned upon the
avoidance of similar offenses under Minnesota law is not the same as
probation because "[a] stay of imposition of sentence with an atten-
dant term of either supervised or unsupervised probation is certainly
_________________________________________________________________
19 Illinois law, which was at issue in United States v. Caputo, 978 F.2d
972 (7th Cir. 1992), defines conditional discharge as a "`conditional and
revocable release without probationary supervision but under such condi-
tions as may be imposed by the court.'" United States v. Miller, 56 F.3d
719, 721 n.1 (6th Cir. 1995) (quoting Ill. Rev. Stat. ch. 38, para 1005-1-
4 (1989)).
23
a more exacting penalty than a like sentence without a term of proba-
tion due to the additional probationary restrictions").
In the present case, it is undisputed that Davis's suspended sen-
tence was revocable if he failed to satisfy the condition of "good
behavior" at any time within twelve months of his conviction for fail-
ure to appear. Although his sentence did not refer explicitly to a term
of probation, we agree that Davis's twelve-month"good behavior"
requirement is the functional equivalent to a term of unsupervised
probation. We, therefore, conclude that the district court did not err
in giving Davis a criminal history point based upon his conviction for
failure to appear.20
IX.
For the reasons discussed, we find no error at the trial or sentencing
phases of the criminal proceedings against Appellants. We therefore
affirm Appellants' convictions and sentences.
AFFIRMED
_________________________________________________________________
20 Davis also argues that, because his involvement in the conspiracy did
not begin in October 1994 and because his conviction for failure to
appear does not count as a prior sentence under U.S.S.G. § 4A1.2, the
district court erred in giving him two additional criminal history points
for being under a criminal justice sentence during his involvement in the
conspiracy. As noted above, however, see supra part VII, we have con-
cluded that the district court did not err in finding that Davis became
involved in the conspiracy in October 1994, only five months after his
May 4, 1994 conviction for attempted grand larceny. Thus, Davis was
still under a term of probation -- and, therefore, a criminal justice sen-
tence -- during his involvement in the conspiracy.
24