UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5142
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID JOE SHELTON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (CR-04-45)
Submitted: August 23, 2006 Decided: September 14, 2006
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David D. Walker, DAVID D. WALKER, P.C., Salem, Virginia, for
Appellant. Dennis H. Lee, Special Assistant United States
Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
David Joe Shelton appeals his convictions and sentence
for conspiracy with intent to distribute at least 111,940 40-
milligram oxycodone tablets, in violation of 21 U.S.C. § 841(a)(1)
(2000) (Count One), possessing with intent to distribute at least
the same quantity of oxycodone tablets, in violation of 21 U.S.C.
§ 841(a)(1) (Count Two), and engaging in a continuing criminal
enterprise (“CCE”), in violation of 21 U.S.C. § 848 (2000) (Count
Three). Finding no reversible error, we affirm.
Shelton’s first issue on appeal is that the district
court abused its discretion in limiting his cross-examination of
the Government’s cooperating witnesses. Shelton contends the court
impermissibly restricted his ability to effectively cross-examine
the Government’s witnesses by prohibiting cross-examination on the
potential punishments the cooperating witnesses would have faced
had they not elected to cooperate with the Government.
A district court’s decision to limit cross-examination is
reviewed for abuse of discretion. United States v. Scheetz, 293
F.3d 175, 184 (4th Cir. 2002). Under the Confrontation Clause, a
defendant has the right to cross-examine witnesses who are
cooperating with the Government about potential sources of bias.
United States v. Cropp, 127 F.3d 354, 358 (4th Cir. 1999).
However, the trial court retains the discretion to place reasonable
limits on cross-examination based on concerns about, among other
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things, harassment, prejudice, confusion, repetition, or relevance.
Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986). This court
has “upheld restricting cross-examination to the minimum and
maximum penalties the cooperating government witness was facing,
whether the cooperating government witness was testifying to gain
a reduced sentence, and the terms of his plea agreement concerning
a downward departure.” Scheetz, 293 F.3d at 184 (citing United
States v. Ambers, 85 F.3d 173, 176-77 (4th Cir. 1996). An improper
denial of an opportunity to examine a witness for bias is subject
to harmless error review. United States v. Turner, 198 F.3d 425,
430-31 (4th Cir. 1999).
With this framework in mind, we conclude the limitation
imposed did not amount to an abuse of discretion. Pursuant to its
ruling on the Government’s motion in limine, the court prohibited
defense counsel from asking the witnesses detailed questions
regarding the possible sentences they might have faced had they not
cooperated with the Government. However, the court did permit
counsel to ask general questions of the Government’s witnesses,
such as whether they had secured a favorable bargain by assisting
the Government or whether the Government had agreed to forego
criminal prosecution in its entirety. Restricting counsel from
delving into the particular details of the potential sentences each
witness could have, but did not necessarily face was an appropriate
discretionary limitation; even with this limitation, Shelton’s
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attorney ably illustrated that each witness had a motive for
testifying against Shelton. It was then up to the jury to
determine how much weight each witness’s testimony should be given
in light of that motivation. To have allowed further questioning
on this issue would have simply been repetitive and distracting.
Shelton next argues the Government violated his rights
under Brady v. Maryland, 373 U.S. 83 (1963), by failing to turn
over impeachment evidence. To prove a Brady violation, a defendant
must show he requested the undisclosed evidence and it was (1)
favorable; (2) material; and (3) that the prosecution had it and
failed to disclose it. See Moore v. Illinois, 408 U.S. 786, 794-95
(1972); United States v. Stokes, 261 F.3d 496, 502 (4th Cir. 2001).
Evidence is “favorable” not only when it would tend to exculpate
the accused, but also when it can be used to impeach Government
witnesses. See United States v. Bagley, 473 U.S. 667, 676 (1985);
United States v. Trevino, 89 F.3d 187, 189 (4th Cir. 1996).
Evidence tending to impeach a Government witness must be disclosed
to a defendant if known to the Government. Giglio v. United
States, 405 U.S. 150, 153-55 (1972). Evidence is material if there
is a reasonable probability its disclosure would have produced a
different outcome. See Bagley, 473 U.S. at 682; United States v.
Kelly, 35 F.3d 929, 936 (4th Cir. 1994). A “reasonable
probability” of a different result is shown when the Government’s
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failure to disclose evidence “undermines confidence in the outcome
of the trial.” Bagley, 473 U.S. at 678.
Shelton’s Brady claim is predicated on a statement from
a confidential informant (“CI”), Teresa Christian, regarding three
controlled purchases of OxyContin she made from another individual
involved in the drug conspiracy, Jerry Palmer. The defense
maintains that, although the Government did not call Ms. Christian
to testify, the defense could have used her statement to impeach
another Government witness, Melissa Rowe. Ms. Rowe testified to
the nature of Shelton’s relationship with Palmer and the frequency
with which she purchased narcotics from both men.
Shelton’s argument fails for two reasons. First, because
Ms. Christian’s statement did not actually contradict Ms. Rowe’s
trial testimony, the statement had no impeachment value. However,
even if the statement did have some measure of impeachment value,
the argument nonetheless fails because the Government properly
disclosed Ms. Christian’s statement to counsel. The record reveals
that, prior to trial, defense counsel received a copy of the
transcript from the tapes of Ms. Christian’s controlled purchases,
as well as the tapes themselves, and that the prosecutor
particularly identified Ms. Christian as the CI involved in those
controlled purchases; defense counsel conceded as much at the post-
verdict hearing on Shelton’s motion for judgment of acquittal and
a new trial.
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Shelton next maintains the district court abused its
discretion in failing to instruct the jury that it could not
convict Shelton of either Count One or Count Three simply because
the evidence established the existence of a buyer-seller
relationship. We review a district court’s decision regarding
whether to give a jury instruction, and the content of that
instruction for an abuse of discretion. United States v. Burgos,
55 F.3d 933, 935 (4th Cir. 1995). The facts of this case reveal no
such abuse of discretion. In fact, the record establishes that the
district court included the requested language in its instruction
relevant to Count Three, the CCE charge. Further, although the
district court did not present this particular language in its
instruction on Count One, as Shelton acknowledges in his brief, the
district court sua sponte dismissed the conviction on this count.
Thus, even assuming the court should have included the requested
language, any potential error is moot.
Shelton’s penultimate argument is that the evidence
presented at trial was insufficient to support the guilty verdict
on Count Three because the evidence did not conclusively show that
he managed or supervised five or more individuals. This court
reviews the denial of a Rule 29 motion de novo. United States v.
Alerre, 430 F.3d 681, 693 (4th Cir. 2005). Where, as here, the
motion was based on a claim of insufficient evidence, “[t]he
verdict of a jury must be sustained if there is substantial
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evidence, taking the view most favorable to the Government, to
support it.” Glasser v. United States, 315 U.S. 60, 80 (1942).
This court “ha[s] defined ‘substantial evidence’ as ‘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.’” Alerre, 430 F.3d at 693 (quoting United States v. Burgos,
94 F.3d 849, 862 (4th Cir. 1996) (en banc)). This court “must
consider circumstantial as well as direct evidence, and allow the
government the benefit of all reasonable inferences from the facts
proven to those sought to be established.” United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). This court “may not
weigh the evidence or review the credibility of the witnesses.”
United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997).
To prove a CCE, the Government must show: (1) the
defendant committed a felony violation of federal narcotics laws;
(2) the crime was part of a continuing series of such violations;
(3) the series of violations was undertaken in agreement with at
least five other persons; (4) the defendant managed, supervised, or
organized these other persons; and (5) the defendant received
substantial income or resources from the enterprise. United States
v. Stewart, 256 F.3d 231, 254 (4th Cir. 2001). We have explained
that lower courts are to give a “common sense” construction to the
management element, “bearing in mind that the statute is intended
to reach the leaders of the drug trade.” Id. at 255. To establish
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the management element, the Government need not “prove that the
five individuals were supervised and acted in concert at the same
time” or that the five individuals were under direct or immediate
control of Shelton. See United States v. Ricks, 882 F.2d 885, 891
(4th Cir. 1989).
Upon our review of the record, we conclude the Government
presented ample evidence from which the jury could conclude Shelton
engaged in a CCE. The Government presented the testimony of
Franklin Payne, Harrison Street, Amy Lester, and Elizabeth Messer,
all of whom testified to selling oxycodone for and at the direction
of Shelton. Further, Ms. Lester and Ms. Messer both testified that
their husbands, Harold Lester and Gary Messer respectively,
similarly sold narcotics for Shelton. These witnesses explained
that in exchange for selling Shelton’s drugs, they received payment
from him in the form of oxycodone pills. Ms. Lester detailed the
frequency with which Shelton would come to her home in order to
replenish their supplies or to pick up purchase money. In
addition, the jury heard testimony from ATF Agent Yoh, who detailed
Shelton’s statement to him in which Shelton admitted that Brian
Perkins and Jerry Palmer also sold narcotics for him.
The Government’s evidence amply demonstrated that Shelton
was not merely a member of this distribution scheme or an oxycodone
addict, as the defense suggested, but was in fact a leader therein.
Shelton admitted at trial to making seven trips to Mexico for the
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sole purpose of purchasing oxycodone in the form of OxyContin. In
his statement to Agent Yoh, Shelton admitted to making at least
twenty such trips. This evidence supports the Government’s theory,
which the jury plainly adopted: that Shelton was not a mere
addict, but a leader in this wide-scale oxycodone distribution
organization.
Shelton’s last challenge is to the district court’s use
of the probation officer’s calculation of the drug quantity
attributable to him. Shelton maintains that the probation
officer’s reliance on his statements to Agent Yoh to calculate the
drug quantity attributable to him was improper because Shelton gave
those statements while under duress; thus, Shelton contends, the
court clearly erred in adopting that calculation and basing his
sentence thereon.
When reviewing the district court’s application of the
Sentencing Guidelines, this court reviews findings of fact for
clear error. United States v. Green, 436 F.3d 449, 456 (4th Cir.),
cert. denied, 126 S. Ct. 2309 (2006). Review of the record reveals
no such clear error. Shelton’s claim that his statements to Agent
Yoh were made under duress amounts to nothing more than a self-
serving assertion that is unsubstantiated by the record. At trial,
Agent Yoh, an ATF agent for five years who also served with the
DEA, testified that Shelton appeared normal and was not exhibiting
any signs of duress or stress during the course of the interviews.
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Agent Yoh reiterated this testimony at sentencing, where he
testified that Shelton did not appear to be intoxicated, or
“without his faculties.” There is simply no basis on which to
conclude the district court committed clear error in relying on the
pre-sentence report, which was based on Shelton’s uncoerced and
voluntary statements to Agent Yoh.
For the foregoing reasons, we affirm Shelton’s
convictions and sentence. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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