UNPUBLISHED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Affirmed in part, reversed in part, and remanded by unpublished per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Unpublished opinions are not binding precedent in this circuit.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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