UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4114
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRANDI HAMBRICK, a/k/a Jessica Marie Long,
a/k/a Jessica Brandy Long,
Defendant - Appellant.
No. 06-4271
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERIC GIRAULT, a/k/a E,
Defendant - Appellant.
Appeals from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (2:04-cr-00019-3; 2:04-cr-00019-4)
Argued: March 15, 2007 Decided: August 3, 2007
Before WILKINSON and MOTZ, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
ARGUED: Bruce Steven Harvey, Atlanta, Georgia; David O. Schles,
Charleston, West Virginia, for Appellants. Stephanie Lou Haines,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Huntington, West Virginia, for Appellee. ON BRIEF: Mark
Yurachek, Atlanta, Georgia, for Appellants. Charles T. Miller,
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Eric Girault and Brandi Hambrick (collectively, “Appellants”)
appeal their convictions and sentences for conspiracy to distribute
100 kilograms of marijuana, see 21 U.S.C.A. § 846 (West 1999),
conspiracy to launder money, see 18 U.S.C.A. § 1956(h) (West Supp.
2007), and promotion and facilitation of unlawful activity in
violation of the Travel Act, see 18 U.S.C.A. § 1952(a)(3) (West
2000).1 For the reasons set forth below, we affirm Appellants’
convictions and Girault’s sentence, but we vacate Hambrick’s
sentence and remand for resentencing.
I.
In late 2002, the Drug Enforcement Agency and the Internal
Revenue Service began an investigation into the drug trafficking
activities of Fred Tyson and Kevin Lee in the Charleston, West
Virginia area. The investigation subsequently revealed a drug
trafficking network covering a wider geographic territory.
In 1999, Tyson began distributing marijuana that he received
from a supplier in Atlanta, Georgia. This relationship had ended
by 2000. In 2000, Tyson received a telephone call from Girault,
who stated that he knew Tyson’s previous supplier and requested a
meeting with Tyson. The two men met and agreed that Girault would
1
Girault was also convicted of using a communication facility
to distribute 28 pounds of marijuana. See 21 U.S.C.A. § 843(b)
(West 1999). He does not appeal this conviction.
3
now supply marijuana to Tyson. Under their arrangement, Girault
would ship the marijuana from Atlanta in a courier-driven vehicle
to Tyson in Charleston. When the marijuana shipments arrived in
Charleston, Tyson and Lee would repackage the drugs into small
plastic baggies for sale. Tyson would then return a portion of the
sale proceeds, in vacuum-sealed packages, to Girault in Atlanta.
In total, Tyson received approximately six to eight shipments, each
containing 80 to 160 pounds of marijuana.
Beginning in late 2001 or early 2002, Tyson took a break from
his business relationship with Girault. However, by late 2003, the
two men resumed their business activities by trafficking mid-grade
marijuana, a more expensive type. Using the same procedures as
before, marijuana was delivered by courier from Girault in Atlanta
to Tyson in Charleston on three occasions. There were quality
control issues, however, with the first shipment of mid-grade
marijuana (it was moldy and unmarketable). To ensure that the
future shipments arrived in sale condition, Girault traveled to
Charleston for the scheduled deliveries. The second and third
shipments arrived as scheduled on the weekends of January 10 and
January 17, 2004 in a vehicle driven by Hambrick.
At this time, law enforcement officials were conducting
intense surveillance, including camera and telephone surveillance,
of Tyson. On January 10, law enforcement intercepted a telephone
call between Tyson and Lee confirming Girault’s arrival in
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Charleston and a meeting at a local restaurant. Lee and Girault
were also captured on surveillance camera at various times
throughout the delivery weekend in the parking lot of a local
business used by Tyson to process the drugs. After Girault left
Charleston, law enforcement intercepted telephone calls between
Tyson and Lee in which they discussed future shipments, sales
collection efforts, and Girault’s next scheduled trip to
Charleston.
As the date of the January 17th shipment grew closer, law
enforcement continued to intercept telephone calls between Tyson
and Girault. During one of these calls, Girault advised Tyson that
Hambrick was at a Charleston hotel with the marijuana and directed
Tyson to contact her for pickup details. Tyson was also instructed
to give collected sales proceeds to Hambrick. Later, law
enforcement observed Tyson, Lee, and Hambrick meeting in the hotel
parking lot and retrieving a box from her vehicle.
On January 18, after learning that Tyson and Girault agreed to
meet in an apartment owned by Tyson, law enforcement officers
proceeded to arrest the members of the drug conspiracy. At the
apartment, the officers found Girault, Hambrick and another
individual. Hambrick was arrested, and the officers seized a
suitcase containing more than $18,000 in vacuum-sealed packets, as
well as $900 in cash and a pair of false driver’s licenses from
Hambrick’s purse. The officers also seized other physical
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evidence, including a work bench with marijuana residue, a knife
with residue, digital scales, and a heat sealer from the business
Tyson and Lee used to process the marijuana they received from
Girault. Prior to trial, Tyson, Lee, and two other co-conspirators
pleaded guilty to various money laundering and drug conspiracy
charges. Pursuant to their plea agreements, all testified on
behalf of the government.
After a five-day jury trial in which Hambrick and Girault
testified in their own defense, both were found guilty on all
charges. In preparation for Hambrick’s sentencing on January 24,
2006, a presentence report (PSR) was prepared. At her sentencing,
Hambrick objected to the calculated base offense level of 26
because it overstated the quantity of marijuana attributable to her
individually. See United States Sentencing Guidelines Manual
§§ 1B1.3, 2D1.1(c)(7) (2005). The district court agreed and
reduced her base offense level to 16. The district court also
applied a two-level enhancement because Hambrick was convicted
under 18 U.S.C.A. § 1956, see id. § 2S1.1(b)(2)(B), a two-level
reduction for her minor role in the offense, see id. § 3B1.2(b),
and a two-level increase for obstruction of justice, see id.
§ 3C1.1. The resulting final offense level of 18, when combined
with Hambrick’s Criminal History Category of I, yielded an advisory
guideline range of 27-33 months. The district court, however,
concluded that Hambrick’s conviction for conspiracy to distribute
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more than 100 kilograms of marijuana required imposition of a 60-
month mandatory minimum sentence, regardless of the drug quantity
attributable to her individually. See 21 U.S.C.A. § 846 (“Any
person who ... conspires to commit any offense defined in this
subchapter shall be subject to the same penalties as those
prescribed for the offense, the commission of which was the object
of the ... conspiracy.”); id. § 841(b)(1)(B)(vii) (West 1999 &
Supp. 2007) (requiring imposition of 5-year minimum sentence for
distribution of 100 kilograms or more of marijuana); U.S.S.G.
§ 5G1.1(b) (“Where the statutorily required minimum sentence is
greater than the maximum of the applicable guideline range, the
statutorily required minimum sentence shall be the guideline
sentence.”).
Girault’s PSR recommended attribution of 100 kilograms or more
of marijuana, corresponding to a base offense level of 26, see
U.S.S.G § 2D1.1(c)(7), a two-level enhancement for Girault’s
conviction under 18 U.S.C.A. § 1956, see id. § 2S1.1(b)(2)(B), a
four-level enhancement based on Girault’s role as an organizer and
leader of the conspiracy, see id. § 3B1.1(a), and a two-level
increase for obstruction of justice, see id. § 3C1.1. The
resulting final offense level of 34, when combined with Girault’s
Criminal History Category of I, yielded an advisory guideline range
of 151 to 188 months. The district court imposed a sentence of 151
months imprisonment.
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II.
Appellants challenge the sufficiency of the evidence to
support their convictions. A defendant challenging the sufficiency
of the evidence “bears a heavy burden.” United States v. Beidler,
110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks
omitted). When addressing sufficiency of the evidence challenges,
we must uphold a jury 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). “[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. Burgos, 94 F.3d
849, 862 (4th Cir. 1996) (en banc).
A.
Appellants first argue that the Government did not prove a
single conspiracy to distribute marijuana as charged in the
indictment, but instead proved the existence of multiple
conspiracies or, alternatively, a buyer-seller relationship between
Girault and Tyson. Appellants contend that this discrepancy
between what was charged and the proof offered at trial resulted in
a fatal variance that warrants reversal of their convictions. See
United States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999). We
disagree.
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The Government bears the burden of proving the single
conspiracy charged in the indictment. See United States v. Hines,
717 F.2d 1481, 1489 (4th Cir. 1983). The question of “[w]hether
there is a single conspiracy or multiple conspiracies depends upon
the overlap of key actors, methods, and goals.” United States v.
Strickland, 245 F.3d 368, 385 (4th Cir. 2001) (internal quotation
marks omitted). We have previously determined that “[a] single
conspiracy exists where there is one overall agreement, or one
general business venture.” United States v. Leavis, 853 F.2d 215,
218 (4th Cir. 1988) (internal quotation marks & citation omitted).
The evidence here, viewed in the proper light, demonstrated
that the conspirators shared the same objective and goal
(distribution of marijuana for money), the same methods
(transporting the drugs from Atlanta to Charleston in courier-
driven vehicles), and the same core participants (including
Girault, Tyson, and Lee). In addition, the testimony by co-
conspirators Tyson, Lee, Graves, and Singleton was highly
consistent and corroborated by the testimony of law enforcement
officers as well as abundant physical evidence. In our view, this
was more than sufficient to support the jury finding of a single
conspiracy.
B.
Appellants also challenge the sufficiency of the evidence to
support their convictions for conspiracy to distribute 100
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kilograms of marijuana, conspiracy to commit money laundering, and
violation of the Travel Act. However, our review of the record
compels us to conclude that the evidence of Appellants’ guilt was
abundant and that it amply supported the jury verdicts. As stated
above, the co-conspirators’ testimony regarding the operations of
the conspiracy and its leadership was consistent and detailed.
Their testimony regarding Girault’s control of the shipment
schedule and receipt of the sale proceeds, when presented alongside
the overwhelming physical, audio, and visual evidence, proved
Girault’s role as manager and Hambrick’s as courier in the
conspiracy. Consequently, we affirm their convictions.
III.
Girault contends that the district court erred when it
prohibited him from refreshing Tyson’s recollection using the notes
of an investigating agent who debriefed Tyson on several occasions.
When Tyson admitted he could not recall certain details regarding
his relationship with previous drug suppliers, Girault’s counsel
sought to refresh Tyson’s recollection. The court ruled that
counsel could not show Tyson the document because “it’s not his
statement. It’s [the agent’s] version.” J.A. 258.
Whether to allow a witness’ recollection to be refreshed is an
evidentiary decision entrusted to the discretion of the trial
court. See United States v. Cranson, 453 F.2d 123, 124 (4th Cir.
1971); see also Fed. R. Evid. 612. A trial court “by definition
10
abuses its discretion when it makes an error of law.” Koon v.
United States, 518 U.S. 81, 100 (1996). A witness’ recollection
may be refreshed with documents that are not themselves admissible
in evidence, even if the witness himself did not prepare the
documents. See United States v. Landof, 591 F.2d 36, 39 (9th Cir.
1978).
Although we agree that the district court erred when it
prevented Girault from refreshing Tyson’s recollection using the
agent’s notes, we conclude that the error was harmless. See Fed.
R. Crim. P. 52(a). In light of the evidence described above, it is
highly unlikely that Girault’s inability to refresh Tyson’s memory
using the agent’s notes affected the jury verdict. See United
States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997) (holding that
an evidentiary error will be found harmless if the reviewing court
can conclude “with fair assurance, after pondering all that
happened without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the error”)
(internal quotation marks omitted).
IV.
Relying on his multiple conspiracy defense, Girault also
claims that the district court did not properly consider the
evidence of Tyson’s break in drug trafficking activity when
sentencing him.
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The factual findings of the district court at sentencing are
reviewed for clear error. See United States v. Uwaeme, 975 F.2d
1016, 1018 (4th Cir. 1992). Here, it is evident from the record
that the district court did not err in the manner argued by
Girault.2 The district court sentenced Girault based upon an
adjusted offense level of 34, increased from a base offense level
of 26. To reach a base offense level of 26 under the Guidelines,
the district court determined that Girault was involved in “a
single continuing conspiracy” that was responsible for the
distribution of 100 kilograms or more of marijuana. J.A. 731; see
U.S.S.G. § 2D1.1(c)(7). This determination was not clearly
erroneous. Indeed, our review of the record reveals that evidence
of Girault’s involvement in the single conspiracy was overwhelming.
Accordingly, we affirm Girault’s sentence.
2
We note that Girault asserts a Sixth Amendment error in his
reply brief. See Apprendi v. New Jersey, 530 U.S. 466, 490
(2000); United States v. Collins, 415 F.3d 304, 314 (4th Cir.
2005). However, an issue first argued in a reply brief is not
properly before us. See Cavallo v. Star Enter., 100 F.3d 1150,
1152 n.2 (4th Cir. 1996). But even if Girault had properly raised
such a claim, we would decline to notice it. See United States v.
Promise, 255 F.3d 150, 161-64 (4th Cir. 2001) (en banc) (declining
to recognize plain error when the district judge violated the
Sixth Amendment by making drug weight findings because the
evidence was overwhelming and “had the indictment included the
[drug quantity], the jury would have found [the defendant] guilty
beyond a reasonable doubt”); United States v. Hadden, 475 F.3d
652, 670-72 (4th Cir. 2007).
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V.
Last, Hambrick asserts that she was sentenced in violation of
United States v. Collins, 415 F.3d 304, 314 (4th Cir. 2005)
(holding that for sentencing purposes in a drug conspiracy case the
jury must determine the specific amount of drugs attributable to
each individual defendant in order to set a threshold drug quantity
under § 841(b)). The Government correctly concedes that the
district court erred in applying the mandatory minimum sentence of
60 months based upon the larger quantity of drugs attributable to
the entire conspiracy rather than the quantity attributable to
Hambrick individually. Further, the record shows that the issue of
Hambrick’s individual drug quantity culpability was not submitted
to the jury. Accordingly, we vacate Hambrick’s sentence and remand
for resentencing consistent with Collins. Id. at 315 (stating
remedy).
VI.
For the reasons set forth above, we affirm Appellants’
convictions and Girault’s sentence. We vacate Hambrick’s sentence
and remand for resentencing.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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