UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-5009
DAVID WAYNE STOUT,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-02-202)
Submitted: August 6, 2003
Decided: August 20, 2003
Before WIDENER, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Amos Granger Tyndall, OSBORN & TYNDALL, P.L.L.C., Chapel
Hill, North Carolina, for Appellant. Anna Mills Wagoner, United
States Attorney, Randall S. Galyon, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. STOUT
OPINION
PER CURIAM:
David Wayne Stout appeals his conviction for conspiracy to pos-
sess with intent to distribute in excess of fifty kilograms of marijuana
and his resulting sixty-one month sentence. Stout’s attorney has filed
a brief raising three issues: (1) sufficiency of the evidence; (2) error
in failing to disclose co-defendants’ presentence reports ("PSRs");
and (3) adequacy of the jury instructions. Stout has filed a motion to
submit a pro se supplemental brief raising numerous additional
claims. Finding no reversible error, we affirm Stout’s conviction and
sentence.
I.
Several months before Stout’s involvement, Jody Brafford, who
worked for the Chatham County Utilities Department, dug a pit at a
landfill at the request of the Chatham County Sheriff’s Department.
Brafford and several deputies disposed of a large quantity of mari-
juana in the pit and covered it with dirt.
After aiding law enforcement in burying the marijuana, Brafford
told Stout about the buried marijuana and gave Stout a map describ-
ing the location. Stout spoke with Jamie Harris and Gary Causey
about the marijuana. Both Harris and Causey testified for the Govern-
ment at Stout’s trial. Sometime in October 2000, Stout, Harris, Cau-
sey, and Wilbur Sewell rode to the landfill at midnight in a truck
driven by Causey’s father, Ted. The five men agreed to divide the
recovered marijuana into equal shares. Altogether the marijuana
recovered that night weighed 258 pounds.
Between October and December 7, 2000, the Causeys and Harris
started distributing their shares of the recovered marijuana. On
December 7, Harris was arrested with fifty pounds of marijuana.
Agents then approached Gary Causey, who admitted his participation
and agreed to cooperate. Ted Causey voluntarily delivered 144
pounds of marijuana to federal agents.
UNITED STATES v. STOUT 3
Gary Causey engaged in two tape-recorded conversations with
Stout. The first was a telephone conversation on December 13. The
two discussed their participation in the dig and their concern that they
would be discovered. The second took place on December 20
between Stout, Gary Causey, and Harris. During this conversation,
Stout expressed dismay when Gary Causey informed him that the
marijuana had already been sold for $500 a pound. Disappointed at
the sale price, Stout stated that he "already got a guy giving me $600
a pound for every pound [of marijuana] I got." He then stated that
"one of the reasons I bought that truck, because I was—I’m sort of
damn—you know, I’m counting on this shit cause—I mean, now
chances of us getting into a situation like that or having access to
something like that or making money like that, there ain’t—there’s no
way."
During the trial, Stout moved for disclosure of Gary Causey’s and
Harris’s presentence reports. Defense counsel argued that Harris and
Causey might have given information in the PSRs that could be used
for impeachment purposes at trial. Defense counsel and the Govern-
ment’s attorney predicted that Causey and Harris would testify that
the marijuana was intended to be split among the conspirators. How-
ever, defense counsel was worried that Causey and Harris might tes-
tify differently, and he wanted the PSRs to possibly impeach them if
they did.
After reviewing the information in the PSRs, the district court
stated, "I do not believe at this point, that there should be a disclo-
sure." Stout’s counsel requested that he be permitted to renew the
motion, should Harris and Causey change their testimony, and the
court agreed.
During the Government’s case-in-chief, Harris and Causey testi-
fied, consistent with their earlier statements and Stout’s theory of the
case, that the conspirators agreed to an equal split of the marijuana.
Stout did not renew his request for disclosure.
At the charge conference, Stout requested that the marijuana con-
spiracy instruction include the drug amount. Instead, the district court
bifurcated the process, first instructing on the elements of a marijuana
conspiracy, without reference to drug amount. After the jury returned
4 UNITED STATES v. STOUT
a guilty verdict as to the charge of conspiracy to possess with intent
to distribute marijuana, the district court gave instructions regarding
the determination of what amount of marijuana was attributable to
Stout. Thereafter, the jury unanimously determined beyond a reason-
able doubt that Stout was responsible for 210.4 pounds (95 kilograms)
of marijuana.
II.
In reviewing the sufficiency of the Government’s evidence, we
must sustain the jury’s verdict, "if there is substantial evidence, taking
the view most favorable to the Government, to support it." Glasser v.
United States, 315 U.S. 60, 80 (1942). To prove conspiracy to possess
marijuana with intent to distribute under 21 U.S.C. §§ 841(a)(1), 846
(2000), the Government must show that: (1) an agreement to possess
marijuana with intent to distribute existed between two or more per-
sons, (2) the defendant knew of the conspiracy, and (3) the defendant
knowingly and voluntarily became part of the conspiracy. United
States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc). A con-
spiracy is generally proved by circumstantial evidence and the context
surrounding the evidence. Id. In addition, under 21 U.S.C.
§ 841(b)(1)(C) (West Supp. 2003), possession of more than fifty but
less than 100 kilograms of marijuana, with the intent to distribute, is
punishable by up to twenty years in prison.
Stout makes two arguments regarding the sufficiency of the evi-
dence. First, he contends that the Government did not show that there
was an agreement regarding the distribution of the marijuana. Instead,
the participants agreed to divide the marijuana and go their separate
ways. Second, Stout asserts that he should only have been held
accountable for one-fifth of the marijuana—or forty-two pounds
(nineteen kilograms), and thus, there was insufficient evidence that he
was involved in a conspiracy involving over fifty kilograms of mari-
juana.
Regarding Stout’s first claim, when the co-conspirators unearthed
the marijuana, they each constructively possessed the entire amount.
When they agreed to dig up the marijuana, the conspirators intended
to distribute it. This is clear from the amount of marijuana involved
(and even from the amount of each coconspirator’s individual share),
UNITED STATES v. STOUT 5
see United States v. Ray, 250 F.3d 596, 599-601 (8th Cir. 2001), cert.
denied, 535 U.S. 980 (2002) (ruling that possession of thirty-four
pounds of marijuana created inference of intent to distribute), as well
as from Stout’s statements. Thus, there was sufficient evidence that
the conspiracy was one to possess with intent to distribute marijuana.
Turning to the drug amount, Stout again ignores the fact that he
participated in the digging operation that yielded over 210 pounds of
marijuana. Thus, he was directly involved with the entire amount of
contraband obtained, even though it was then supposed to be divided.
As such, there was clearly sufficient evidence that Stout was a mem-
ber of a conspiracy involving more than fifty kilograms of marijuana.
III.
Stout next challenges the district court’s denial of his request for
disclosure of Causey’s and Harris’s PSRs. However, a defendant is
not entitled to disclosure of a co-defendant’s PSR unless he can show
how the information contained in the PSR will be both material and
favorable to his defense. United States v. Trevino, 89 F.3d 187, 192
(4th Cir. 1996) (recognizing that the confidentiality of PSRs should
be "jealously guarded").
Because Causey and Harris testified as Stout had hoped—that the
conspirators had agreed to split up the marijuana and that they had no
agreement regarding distribution,* Stout cannot show how disclosure
would have assisted his case. While Stout urges this court to indepen-
dently review the PSRs for "favorable information," Stout is not enti-
tled to have the court conduct a fishing expedition for him. Trevino
places the burden on Stout to show that the PSRs contained helpful
evidence. Stout’s conclusory claims are insufficient to meet this bur-
den.
IV.
Stout alleges that, because his jury instructions were bifurcated,
*In addition, after hearing the witnesses’ testimony, Stout declined to
renew his motion.
6 UNITED STATES v. STOUT
they failed to include the essential element that the agreement
involved over fifty kilograms of marijuana. Instead, Stout contends
that the jury was permitted to find that Stout was part of a conspiracy
and that he was responsible for over fifty kilograms of marijuana,
even in the absence of any agreement among the conspirators regard-
ing the amount. We review a district court’s ruling on jury instruc-
tions for abuse of discretion. United States v. Bostian, 59 F.3d 474,
480 (4th Cir. 1995).
Stout is incorrect that, at the time the conspiracy agreement is
formed, the conspirators must agree on the amount they will possess
with intent to distribute. Instead, the parties need only agree to com-
mit an unlawful act. See Burgos, 94 F.3d at 860-61. Furthermore, it
is abundantly clear that the conspirators did agree to possess with
intent to distribute all the marijuana that they could find. The jury’s
finding that Stout was responsible for the entire drug quantity beyond
a reasonable doubt amply illustrates the jury’s belief that the conspir-
acy itself involved the entire amount. Thus, any error in bifurcating
the proceedings was harmless. See Neder v. United States, 527 U.S.
1, 15 (1999) (standard of review).
V.
In his pro se brief, Stout raises numerous claims. We have exam-
ined them carefully and find each to be without merit. Accordingly,
although we grant Stout’s motion to file a supplemental brief, we
affirm Stout’s conviction and sentence. We dispense with oral argu-
ment, because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED