UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4374
ZACHARIAH CLIFTON,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DELANO DUBUISSON, a/k/a Delano
Alphonso Dubuisson, a/k/a Delano
Alfonso Dubuisson, a/k/a Delano
No. 99-4546
Dubusson, a/k/a Delano Tudor,
a/k/a Duane Anthony Grimes, a/k/a
Duane Grimes, a/k/a John Guarles,
a/k/a John Curtis, a/k/a Delana
Dubuison, a/k/a Sammy David
Mclain,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4547
MESHAN BELK,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CR-99-7)
Submitted: February 29, 2000
Decided: March 20, 2000
Before WILKINS, LUTTIG, and KING, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Anthony F. Reid, REID & REID, Alexandria, Virginia; Gregory E.
Stambaugh, Manassas, Virginia; Gregory B. English, ENGLISH &
SMITH, Alexandria, Virginia, for Appellants. Helen F. Fahey, United
States Attorney, Rebeca Hidalgo Bellows, 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Unpublished opinions are not binding precedent in this circuit.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:
Zachariah Clifton, Delano Dubuisson, and Meshan Belk collec-
tively appeal their jury convictions and sentences on one count each
of conspiracy to possess with intent to distribute and to distribute fifty
grams or more of crack cocaine and five kilograms or more of
2
cocaine, in violation of 21 U.S.C.A. § 846 (West Supp. 1999), and
conspiracy to import and to bring and possess on board an aircraft
arriving in the United States five kilograms or more of cocaine, in
violation of 21 U.S.C.A. § 963 (West Supp. 1999). The district court
sentenced Dubuisson, Clifton, and Belk to 292 months, 188 months,
and 121 months of imprisonment, respectively. Each defendant also
was sentenced to five years of supervised release and ordered to pay
the mandatory special assessments.
Defendants timely appealed, claiming that: (1) they were denied a
fair trial by allegedly prejudicial comments made by the Government
during trial and in rebuttal; (2) the district court erred in admitting
into evidence business records reflecting wire transfers involving the
defendants; (3) the district court clearly erred in setting the base
offense level based on both crack and powder cocaine rather than
solely on powder cocaine, erred in determining the amount of crack
and powder cocaine attributable to Dubuisson, and erred in assessing
a four-level increase for Dubuisson's role in the conspiracy; (4) the
district court abused its discretion in denying Clifton's motion for a
new trial based on the failure of the Government to timely disclose
his post-arrest statements to authorities; and (5) the district court erred
in denying defendants' motion for a new trial based on anonymous
letters claiming extrajudicial contacts with jurors. For the reasons
stated below, we affirm defendants' convictions and sentences.
Defendants' first claim is that the district court erred in denying
their motions for mistrial, which were based upon three comments at
trial by the Government. The first comment arose during cross-
examination of witness Ishmael Sanchez, when counsel for Belk
asked where Sanchez's family lived in Panama. The Government
objected, stating, "I don't think this is -- It could be potentially dan-
gerous and also -- I mean, I don't think we normally find out in any
case where a family . . . ." J.A. 169. The district court sustained the
objection; then, after Sanchez's cross-examination was complete,
Dubuisson's counsel moved for a mistrial, asserting that the Govern-
ment had obviously referred to Dubuisson as a drug dealer with the
potential ability to inflict harm on Sanchez's family. The district court
denied the motion, explaining that it is normal procedure not to dis-
close addresses of witnesses. The court indicated that it would con-
sider giving a curative instruction to the jury, but before closing
3
argument, counsel for Dubuisson withdrew the request for a curative
instruction. The second and third comments at issue here arose during
the Government's rebuttal, when Dubuisson was described as a "pur-
veyor of poison" and was attributed with "many aliases."
This court has applied a two-level analysis in reviewing allegations
of prosecutorial misconduct during trial. In this regard, we must first
determine whether the challenged remarks were improper; if so, then
we must ascertain whether the improper remarks prejudicially
affected the defendants' substantial rights such that the defendants
were deprived of a fair trial. See United States v. Wilson, 135 F.3d
291, 297 (4th Cir. 1998); United States v. Bennett, 984 F.2d 597, 608
(4th Cir. 1993).
We find no error in the district court's denial of the defendants'
motions for a mistrial based on the prosecutor's comments. First, with
respect to the Government's comment that it could be dangerous for
the witness to provide his family's address, we note that the prosecu-
tor made no direct reference to any of the defendants. In addition, the
remark was isolated; it was not placed before the jury with the pur-
pose of diverting their attention to extraneous matters; it did not mis-
lead the jury; and the defendant now demanding a new trial rejected
a curative instruction. See United States v. Bennett, 984 F.2d at 608;
United States v. Francisco, 35 F.3d 116, 120 (4th Cir. 1994).
Similarly, we find no error in the denial of a new trial based on the
Government's comment that Dubuisson had many aliases. Among
other things, the Government presented direct testimonial evidence
showing that Dubuisson used two aliases and indirect documentary
evidence that Dubuisson used at least four different names during the
course of the conspiracy. Moreover, following the objection by
Dubuisson's counsel at the time the comment was made, the prosecu-
tor identified for the jury the two aliases that were supported by direct
testimonial evidence. Because the evidence supported the Govern-
ment's comment, and because the comment was clarified by the Gov-
ernment during rebuttal, there was no impropriety in the statement.
See Wilson, 135 F.3d at 297.
Finally, we do not believe the Government's comment that Dubuis-
son was a "purveyor of poison" deprived the defendants of a fair trial.
4
At the outset, this comment did not mislead the jury because it was
clear that the prosecutor was referring to Dubuisson as a dealer of
cocaine and crack cocaine. In addition, the comment was not exten-
sive, and there is no indication that the remark was intended to divert
the jury's attention to extraneous matters. See Bennett, 984 F.2d at
608. Further, the defendant did not even request a curative instruction
as to this comment. See Francisco, 35 F.3d at 120. Given these facts,
and given that the district court instructed the jury that the arguments
and statements of counsel are not evidence, we find that none of the
prosecution's comments at issue affected the fairness of the defen-
dants' trial. See Wilson, 135 F.3d at 297.
Defendants next contend that the district court erred in admitting
into evidence business records reflecting wire transfers involving the
defendants.1 In this regard, we generally review the district court's
admission of evidence for an abuse of discretion. See United States
v. Chin, 83 F.3d 83, 87 (4th Cir. 1996).
Defendants argue that: (1) the bulk of the wire transfers involved
transfers to or from persons unidentified at trial; (2) the probative
value of this evidence was substantially outweighed by its tendency
to be unfairly prejudicial; and (3) the evidence permitted the jury to
speculate about the association between the records and the charged
drug conspiracy. However, our review of the record reveals that the
vast majority of the wire transfers admitted into evidence (in number
and value) reflected Dubuisson or Rook2 as the sender or recipient.
Also, as the district court held in denying defendants' motion for mis-
trial, the wire transfers ultimately admitted into evidence were within
the time frame of the charged conspiracy and related to the conspir-
acy. Under these circumstances, we find no abuse of discretion in the
district court's admission of the wire transfer records.
_________________________________________________________________
1 While they did not object at trial to the admission of these records
pursuant to Fed. R. Evid. 403, the defendants now argue that the admis-
sion of this evidence is subject to the "broadly deferential standard"
accorded Rule 403 objections. See United States v. Simpson, 910 F.2d
154, 157 (4th Cir. 1990).
2 The trial evidence demonstrated that Carlos Rook was Dubuisson's
main partner in this drug conspiracy.
5
Dubuisson next challenges the district court's finding that the base
offense level attributable to him was thirty-six, and he claims that the
court erred in applying the role in the offense increase set forth in
U.S. Sentencing Guidelines Manual, § 3B1.1 (1998). Specifically, he
disputes the findings that: (1) five-hundred grams or more of crack
cocaine and five to fifteen kilograms of cocaine powder was attribut-
able to him; and (2) he was an organizer and leader in the crack
cocaine portion of the conspiracy.3
This court reviews the district court's findings regarding the quan-
tity of drugs and the propriety of an offense increase for clear error.
See United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). The
Government is required to prove drug quantities by a preponderance
of the evidence. Id. In determining the proper drug quantity for sen-
tencing purposes, the district court may consider any relevant and
reliable evidence, including co-conspirators' hearsay statements. Id.
This court has upheld § 3B1.1 increases where the defendant exer-
cised some element of control over the commission of the offense,
see, e.g., United States v. Kincaid, 964 F.2d 325, 329 (4th Cir. 1992),
and where the defendant was a major supplier of drugs for distribu-
tion and redistribution by and to other members of the conspiracy.
See, e.g., United States v. Banks , 10 F.3d 1044, 1057 (4th Cir. 1993).
In relevant part, the evidence in this case demonstrated that when
Ishmael Sanchez obtained the half-kilogram of crack cocaine from
Rook in Washington, D.C., the drugs were initially in powder form
and that Dubuisson arranged to have the cocaine powder converted to
crack cocaine. In addition, one of Sanchez's incremental payments to
Rook for the crack cocaine was paid directly to Dubuisson, at Rook's
direction.
_________________________________________________________________
3 Essentially, while Dubuisson does not contest his leadership role in
the powder cocaine aspects of the conspiracy, he claims that the crack
cocaine related acts "largely involved the actions of Carlos Rook and Ish-
mael Sanchez" and that Dubuisson's limited involvement with crack
cocaine could not reasonably be characterized as being at an organiza-
tional or leadership level. He further claims that any increase should have
been based solely on the lower powder cocaine level provided for in the
guidelines.
6
While Dubuisson claims that there is no evidence that the half-
kilogram testified to by Sanchez was weighed and that this evidence
is insufficient to support the district court's findings, we find this evi-
dence is sufficient to establish, by a preponderance of the evidence,
the drug quantities of which Dubuisson was found to be involved. See
Randall, 171 F.3d at 210. Moreover, the defendant bears the burden
to show that the information relied upon by the district court was
unreliable or inaccurate, id. at 211, and Dubuisson's bald assertion
that Sanchez' testimony was "sketchy" does not carry this burden.
Dubuisson also takes issue with the district court's reliance on the
Presentence Report's assignment of five to fifteen kilograms of pow-
der cocaine to him. The trial evidence demonstrated that Dubuisson
gave Sanchez 2550 grams of powder cocaine to smuggle from Pan-
ama. In addition, Dubuisson gave Tracy McGee 2901 grams of
cocaine in Panama, which was seized by authorities upon her return
to the United States. Accordingly, we find that there was ample evi-
dence to support the district court's conclusion that in excess of 500
grams of powder cocaine was properly attributable to Dubuisson.4
Therefore, we find no clear error in the district court's adoption of a
base offense level of thirty-six for Dubuisson.
We further affirm the district court's four-level increase of that
base offense level, based on the finding that Dubuisson was an orga-
nizer and leader of a conspiracy involving five or more participants.
Contrary to Dubuisson's claim on appeal, the increase was properly
added to the base offense level. See United States v. Hartzog, 983
F.2d 604, 608 (4th Cir. 1993); USSG § 3B1.1.
Next, Clifton asserts that the district court abused its discretion in
denying his motion for a new trial based on the failure of the Govern-
ment to timely disclose his post-arrest statements. On the morning of
trial, Clifton's attorney was made aware that the Government pos-
sessed a written report reflecting a statement Clifton made in which
he confessed to dealing in street-level sales of illegal drugs in North
Carolina during the time period of the charged conspiracy. Clifton's
_________________________________________________________________
4 This calculation does not take into account the unknown amounts of
cocaine Dubuisson gave to Belk, Clifton, and McGee during the first
successful smuggling trip.
7
lawyer maintains that the late disclosure of the incriminating evidence
forced him to adopt a new trial strategy in the middle of trial and pre-
vented his planned strategy of calling Clifton to testify. Clifton's law-
yer also claims that the timely revelation of a prior incriminating
statement would have aided his assessment of the case against Clifton
and may have persuaded Clifton to plead guilty.
While the district court denied Clifton's motion to suppress, it held
that the Government could not use the statement or its FBI witnesses
relating to the statement in its case-in-chief. The court further ruled
that a voluntariness hearing would be held, outside the presence of the
jury, in the event that Clifton elected to take the stand. Clifton did not
take the stand in his defense, and the incriminating post-arrest state-
ment was never introduced into evidence. Then, following the ver-
dicts, Clifton included this claim in his motion for a new trial.
We agree with the district court that there was no prejudice to Clif-
ton, given that the Government was precluded from using the state-
ment in its case-in-chief. The other facts surrounding this incident
buttress our conclusion: (1) Clifton would have had another opportu-
nity to have the statement suppressed had he decided to testify; and
(2) he had the duration of the three-day trial to consider entering a
guilty plea. Given these facts, we affirm the district court's denial of
Clifton's motions to suppress and for a new trial arising from this
incident.
Defendants' final argument on appeal is that the district court erred
in denying their motions for a new trial based on two anonymous let-
ters claiming extrajudicial contacts with jurors. 5 Following the trial of
this case, the Government and the presiding district judge each
received an unsigned letter purporting to be from a juror, alleging that
the anonymous juror and another unnamed juror were approached on
the second day of trial by an unfamiliar gentleman who "subtly" sug-
gested that the defendants should be convicted.
We find no abuse of discretion in the district court's denial of the
motion for a new trial on the ground of jury tampering. See United
_________________________________________________________________
5 Counsel for Belk also requested an investigation of the claim.
8
States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995) (citation omitted);
United States v. Hernandez, 921 F.2d 1569, 1577 (11th Cir. 1991).
Because the letters were anonymous and had not been delivered to
any of the defense attorneys, the district court properly questioned
their reliability, and in light of the unsubstantiated nature of the anon-
ymous letters, we do not believe that the district court had any duty
to further investigate the claims. See Hernandez , 921 F.2d at 1577.
Accordingly, we affirm the defendants' convictions and sentences.
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
9