United States v. Anderson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4303

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DEWAYNE ANDERSON,

Defendant - Appellant.

No. 07-4304

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DARRELL LAW, a/k/a B,

Defendant - Appellant.

Appeals from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (1:06-cr-00020-IMK-8; 1:06-cr-00020-IMK-9)

Argued: May 16, 2008 Decided: June 20, 2008
Before MICHAEL and SHEDD, Circuit Judges, and Henry F. FLOYD,
United States District Judge for the District of South Carolina,
sitting by designation.

Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.

ARGUED: Kumaraswamy Sivakumaran, STERLING LEGAL SERVICES, PLLC,
Clarksburg, West Virginia; Scott Alan Shough, Fairmont, West
Virginia, for Appellants. Zelda Elizabeth Wesley, OFFICE OF THE
UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.
ON BRIEF: Sharon L. Potter, United States Attorney, Wheeling, West
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Dewayne Anderson and Darrell Law appeal their convictions and

sentences for several drug offenses, raising numerous issues. For

the reasons that follow, we reverse Anderson’s conviction for

conspiracy to possess with intent to distribute and to distribute

cocaine base and remand his case for further proceedings. We

affirm Law’s convictions and sentence in their entirety.

I

In 2005, the West Virginia State Police Bureau of Criminal

Investigation (“BCI”) identified the residence of Gary Bruder in

Fairmont, West Virginia, as the focal point of extensive drug

dealing activity. Viewed in the light most favorable to the

government, the evidence at trial established that the Bruder

residence was a place where individuals could buy, sell, and use

crack cocaine, as well as meet potential customers and suppliers.

Law regularly sold crack from the Bruder residence, compensating

Bruder in crack for the use of his home. As part of BCI’s

investigation, police informant Mike Steffick made two controlled

purchases of crack from Law, one of which occurred in the Bruder

residence and the other directly outside it.

West Virginia State Police Trooper John Smith, working

undercover, also made two controlled purchases of powder cocaine

from Anderson. Each time, Smith contacted a co-defendant, Dwan

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Edwards, via telephone and Edwards instructed Smith to go to a

public location. Anderson arrived to deliver the drugs and was

identified to Smith by Edwards over the telephone. When Smith

asked Anderson whether he should contact Anderson or Edwards to

obtain drugs in the future, Anderson replied, referring to Edwards,

that “we was all the same” and “we’re all one”.

In March 2006, Anderson, Law, and seven co-defendants were

charged with numerous drug offenses in a thirteen-count indictment.

Count 1 charged all the defendants with conspiracy to possess with

intent to distribute and to distribute cocaine base, in violation

of 21 U.S.C. §§ 846 and 841(b)(1)(A)(iii). Counts 9 and 10 charged

Law with distribution of cocaine base in violation of 21 U.S.C. §§

841(a)(1) & (b)(1)(c). Count 13 charged Anderson with aiding and

abetting the distribution of cocaine hydrochloride in violation of

21 U.S.C. §§ 841(a)(1) & (b)(1)(c), and 18 U.S.C. § 2. Following

a jury trial, Anderson and Law were convicted on all charges, and

they now appeal.

II

Anderson argues on appeal that the district court erred in

denying his motion for judgment of acquittal on Count 1. We review

de novo the district court’s ruling on a motion for judgment of

acquittal and we will uphold the verdict if, viewing the evidence

in the light most favorable to the government, it is supported by

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substantial evidence. United States v. Alerre, 430 F.3d 681, 693

(4th Cir. 2005). Substantial 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.” Id. (internal quotation and citation omitted). In order

to prove the conspiracy charged in Count 1, the government was

required to establish (1) an agreement to possess with intent to

distribute cocaine base existed between two or more persons; (2)

Anderson knew of the conspiracy; and (3) Anderson knowingly and

voluntarily became part of the conspiracy. United States v.

Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc).

The Indictment charged Anderson and eight others with

participation in a single conspiracy to possess with intent to

distribute and to distribute crack cocaine. The government’s

theory of the case was that the Bruder residence served as the hub

of the conspiracy and that Anderson, working with defendant Dwan

Edwards, obtained customers through the Bruder residence.

The evidence at trial, however, demonstrated only an agreement

between Anderson and Edwards to sell powder cocaine. The

government failed to introduce any evidence at trial linking either

Anderson or Edwards to the crack conspiracy centered around the

Bruder residence. Without such evidence, there was no basis for

the jury to conclude that Anderson, independently or through

Edwards, was aware of that conspiracy or that he voluntarily became

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part of it. Accordingly, we reverse Anderson’s conviction on Count

1.*

Anderson also argues that the district court erred in

instructing the jury as to Count 13 and in one evidentiary ruling,

and that the Indictment was defective. We conclude that these

arguments are without merit and therefore affirm his conviction on

Count 13.

III

Law also contends on appeal that there is insufficient

evidence to support his conviction on Count 1. Specifically, he

argues that the government failed to prove the existence of an

agreement between Bruder and him. This argument is without merit.

At trial, Mike Steffick testified that he purchased crack from Law

in and outside Bruder’s residence. Timothy Snoderly also testified

that Law sold crack in Bruder’s home and in Bruder’s presence, and

that Bruder received crack from Law as payment for permitting these

sales to occur. Snoderly further testified that Law knocked out

several of Bruder’s teeth when Bruder complained that Law was not

paying him as agreed. This evidence is sufficient to permit the

jury to conclude that an agreement existed between Law and Bruder.

*
At oral argument, counsel for the government conceded this
deficiency. Although we are not bound to accept this concession,
see United States v. Rodriguez, 433 F.3d 411, 414 n.6 (4th Cir.
2006), we view it as an indication of the correctness of our
conclusion.

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 Law also challenges two of the district court’s evidentiary

rulings and the sentence it imposed. We find no merit in these

contentions, and therefore affirm Law’s convictions and sentence.

IV

For the foregoing reasons, we reverse Anderson’s conviction on

Count 1, affirm his conviction on Count 13, and remand his case for

further proceedings consistent with this opinion. We affirm Law’s

convictions and sentence in their entirety.

AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED

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