United States v. Masko

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4681
RONALD T. MASKO,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4682
EUGENE BANNISTER,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4693
RODNEY D. EDMONSON,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4739
STANLEY HOBEREK,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-99-13)
Submitted: April 25, 2000
Decided: August 9, 2000
Before MURNAGHAN, NIEMEYER, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
William Cipriani, CIPRIANI & PAULL, Wellsburg, West Virginia;
William C. Gallagher, CASSIDY, MYERS, COGAN, VOEGELIN &
TENNANT, L.C., Wheeling, West Virginia; Franklin Lash, Whee-
ling, West Virginia; Kevin Neiswonger, Moundsville, West Virginia,
for Appellants. Melvin W. Kahle, Jr., United States Attorney, Robert
H. McWilliams, Jr., Assistant United States Attorney, Wheeling,
West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
The Defendants appeal the criminal judgments convicting them of
several drug-related offenses. The Defendants participated in a drug
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distribution conspiracy in the area of Western Pennsylvania, Northern
West Virginia, and Ohio involving cocaine, crack, and heroin. We
have reviewed the record and find no error. We therefore affirm.
The Defendants claim there was a fatal variance between the facts
alleged in the indictment and the evidence presented at trial because
the indictment alleged a single conspiracy and the evidence presented
at trial established multiple conspiracies. We find that the evidence,
viewed in the light most favorable to the Government, supported the
jury's verdict. See United States v. Harris, 39 F.3d 1262, 1267 (4th
Cir. 1994).
Defendant Ronald Masko argues that the district court erred in
finding the presence of sufficient exigent circumstances to justify the
warrantless entry into his motel room. When Masko suffered a severe
reaction while in the room, his female companion asked motel per-
sonnel to call 911. Masko eluded police called to the scene by running
around the motel property naked, and was finally secured and trans-
ported to the hospital. We find that the warrantless entry was justified
because the officer had an objectively reasonable belief that an emer-
gency involving danger to Masko's female companion required
immediate entry. See United States v. Moss, 963 F.2d 673, 678 (4th
Cir. 1992).
Masko also assigns error to the district court's admission of evi-
dence seized from his truck parked in the motel parking lot. After the
officers searched the motel room pursuant to the warrant, the officers
went to the motel parking lot with a drug dog. The dog alerted on
Masko's truck and bags in the truck. The truck was searched that day
based on probable cause established by the dog alert. Drugs were
found in the bag in the truck bed and in a bag found inside the truck.
Masko argues that the officers needed a warrant to search the truck
because they had time to get a warrant given that Masko was trans-
ported to the hospital and in custody. However, there is no exigency
requirement for a warrantless search of an automobile, as long as
probable cause exists. See California v. Acevedo , 500 U.S. 565, 579
(1991). Therefore the evidence was properly admitted.
Masko argues that the district court erred by denying his motion for
acquittal on Counts 16 and 17 of the indictment, which charged that
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Masko traveled in interstate commerce from Pennsylvania to West
Virginia with the intent to distribute crack, and the distribution of the
crack, because the specific time frame was not set forth in the indict-
ment or proven at trial. Masko alleges that because the exact date was
not set forth in the indictment or at trial he was unable to prepare a
defense or be protected against future Double Jeopardy concerns. We
find that time was not a material element of the offense. See United
States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993). Further, the time
variance was not so large as to require acquittal. See United States v.
DeBrouse, 652 F.2d 383, 390 (4th Cir. 1981); United States v. Duke,
940 F.2d 1113, 1113 (8th Cir. 1991).
Masko argues that the court's use of Donaldson and Campbell's
testimony to estimate attributable drug amounts was error. We find
that the court did not clearly err in making a conservative estimate of
the amount of crack attributable to Masko based upon the testimony
of Donaldson and Campbell. See United States v. Cook, 76 F.3d 596,
604 (4th Cir. 1996); United States v. Lamarr, 75 F.3d 964, 972-73
(4th Cir. 1996).
Eugene Bannister objects to the admission of evidence relating to
the drug-related deaths from heroin provided by him. He also objects
to the court's sentence of life imprisonment based upon these deaths.
We find that the district court did not err in admitting the evidence
because it was relevant under Fed. R. Evid. 401 and not excludable
under the balancing test of Fed. R. Evid. 403. We do not find United
States v. Patterson, 38 F.3d 139 (4th Cir. 1994), persuasive on the
issue because the court did not address the admissibility of drug-
related death evidence at trial.
We find that Bannister was properly sentenced for his conviction
for violating 21 U.S.C.A. § 846 (West 1999). The conspiracy statute
provides "[a]ny person who attempts or conspires to commit any
offense defined in this subchapter shall be subject to the same penal-
ties as those prescribed for the offense, the commission of which was
the object of the attempt or conspiracy." 21 U.S.C.A. § 846. In this
case, the object of the conspiracy charged in count one was to violate
21 U.S.C. § 841(a)(1). The penalty for violating 21 U.S.C.
§ 841(a)(1), when the defendant has a prior drug felony and death
resulted from the use of drugs, is a mandatory life imprisonment term.
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See 21 U.S.C.A. § 841(b) (West 1999); United States v. Wessels, 12
F.3d 746, 752 (8th Cir. 1993).
Bannister argues that there was insufficient evidence to support his
convictions on Counts 7 through 10. We find that, viewing the evi-
dence in the light most favorable to the Government, sufficient evi-
dence existed to support the convictions. James Carr's testimony on
direct examination was specific enough for a rational factfinder to
find that Bannister committed the acts charged. See Glasser v. United
States, 315 U.S. 60, 80 (1942).
Edmonson argues that two statements made by Craig Robinson
implicating Edmonson in the conspiracy should have been excluded
as hearsay. We find that the statements were admissible under Fed.
R. Evid. 801(d)(2)(E). See United States v. Patterson, 717 F.2d 1481,
1488 (4th Cir. 1983).
Edmonson also assigns error to the district court's ruling admitting
the grand jury testimony of Louie Franchina after he died one week
prior to trial. We affirm the court's ruling on the reasoning of the dis-
trict court. See J.A. 109-10.
Finally, the Defendants assign error to the district court's admis-
sion of tape-recorded telephone and in-person conversations that Gov-
ernment witness, Steve Watters, had with Hoberek because law
enforcement officers conducting the investigation did not comply
with Pennsylvania law regarding the interception of communications.
See 18 Pa. Cons. Stat. § 5704 (1983 & Supp. 2000). We held in
United States v. Glasco, 917 F.2d 797, 799 (4th Cir. 1990), that "state
law is simply irrelevant in a federal prosecution if the investigating
officers, even state officers acting alone, are not acting under the
authorization of a state court." Therefore, the court did not err in
admitting the evidence.
Hoberek filed a motion to file a supplemental pro se brief. Hoberek
wishes to raise several claims in addition to those raised by his coun-
sel. First, he asserts that the Government should not have been per-
mitted to introduce the testimony of twenty witnesses, who testified
that they purchased drugs in his bar, to support the substantive
charges. He also challenges any testimony regarding transactions in
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Pennsylvania because the case was brought in the Northern District
of West Virginia. Hoberek next alleges that the jury was not
instructed on multiple conspiracies. Finally, Hoberek argues that he
should have been sentenced for a conspiracy involving marijuana, and
not crack cocaine. Because Hoberek's supplemental claims are with-
out merit, we deny the motion to file a supplemental pro se brief.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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