United States v. Percy Tucker

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4914

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

PERCY JAMES TUCKER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Arenda Wright Allen, District
Judge. (2:09-cr-00182-AWA-DEM-1)

Submitted: June 19, 2013 Decided: August 9, 2013

Before TRAXLER, Chief Judge, and GREGORY and THACKER, Circuit
Judges.

Affirmed by unpublished per curiam opinion.

Maureen Leigh White, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Alexandria, Virginia; Sherrie
S. Capotosto, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Defendant Percy James Tucker filed this appeal challenging

his conviction for conspiracy to distribute and possess cocaine

and marijuana, money laundering, and other related charges.

Tucker argues that the district court erred both when it denied

his motion for judgment of acquittal 1 on each of eleven counts

and when it denied his motion to proceed pro se. Finding no

error, we affirm.

I.

A.

Defendant Percy Tucker has been involved in the trucking

business since 1990. In the early 2000s, Tucker set up and

managed trucking companies for several individuals, including

Jovan Hassell, David Bragg, and Randolph Person. Hassell,

Bragg, and Person testified at trial that Tucker knew of their

involvement in the drug trade. After Tucker set up these

trucking businesses and assisted in the purchase of tractor

trailers, he created false liens that allowed the owners to

1
Tucker’s appeal is framed as a challenge to the district
court’s denial of a “directed verdict of acquittal.” The
Federal Rules of Criminal Procedure state that “[m]otions for
directed verdict are abolished and motions for judgment of
acquittal shall be used in their place.” Fed. R. Crim. P.
29(a). We therefore construe Tucker’s appeal as a challenge to
the denial of his motions for judgment of acquittal.

2
avoid forfeiture in the event they were arrested for dealing in

narcotics. In 2004, Tucker incorporated MidAtlantic

Commodities, which leased a warehouse in Virginia Beach where

the tractor trailers were loaded and unloaded. Although Hassell

and Bragg paid the rent, Tucker’s name was on the warehouse

lease.

Hassell and Bragg testified that they transported at least

ten kilograms of cocaine each week from Atlanta to Virginia from

2001 until 2009. Beginning in approximately 2006, they began to

transport cocaine using the trucking companies and warehouse.

Typically, Hassell and Bragg hid money inside the spare tires of

rented SUVs and then loaded the SUVs into tractor trailers at

the warehouse. Hassell explained that they would take the tire

from the bottom of the truck, pop it open, stuff money inside,

re-seal and re-inflate it, and then place it back underneath the

SUV. Once in Atlanta, they would take the money out of the tire

and replace it with the cocaine they purchased from their

supplier. After returning to the warehouse, buyers would go to

the warehouse to purchase cocaine that had been broken down into

smaller quantities. One associate, Kimani Lewis, testified that

there were money machines, scales, and baggies in the warehouse

for breaking the drugs into smaller amounts. Hassell affirmed

that on numerous occasions, Tucker was present in the warehouse

while drug operations were being conducted. There was no

3
testimony presented at trial, however, establishing that Tucker

ever actually saw drugs being handled at the warehouse.

Hassell and Bragg both testified that in 2006, Tucker began

to personally transport money and drugs. In one instance,

Hassell asked Tucker to drive him to Atlanta to complete a deal.

Tucker drove the truck to a Wal-Mart parking lot. Hassell then

took the money he had hidden in a suitcase beneath the bed of

the tractor trailer and handed it to his supplier. After his

supplier took the money out of the suitcase, Hassell placed the

cocaine he had purchased into the suitcase and returned the

suitcase to its hiding place. Tucker then drove the truck with

the drugs back to Virginia. Again, there was no direct evidence

presented that Tucker viewed the drugs being placed into the

suitcase or onto the truck he was driving. However, Hassell and

Bragg also described another drug deal involving the purchase of

a large quantity of marijuana from Texas. Testimony at trial

indicated that Tucker hid the marijuana inside thrift store

furniture, loaded it onto a truck, and then hired someone to

drive the truck from Texas to Virginia.

Tucker also supported Hassell and Bragg’s drug operation in

other ways. In 2003, North Carolina police pulled Bragg over

and seized over $49,000 in cash he was carrying to make a

cocaine purchase. Bragg testified that he paid Tucker $15,000

to retrieve the money. Tucker called the police officer who

4
made the seizure and told the officer that the money was

intended for the purchase of a tractor trailer. Later, Tucker

created fake loan documents, which he presented at a forfeiture

hearing in a federal court in North Carolina. Ultimately,

Tucker received a check for the amount of money that had been

seized, which he placed in Bragg’s account after claiming his

$15,000 payment.

Tucker also helped Person avoid police seizure of proceeds

from narcotics sales. Person testified that he used a friend’s

house in Chesapeake, Virginia to cook powder cocaine into crack

cocaine. At one point, he invited Tucker to come to the house

to complete a business transaction. While Tucker sat and

waited, Person finished cooking a nine-ounce batch of powder

cocaine into crack cocaine in plain view of Tucker. About two

weeks after Tucker’s visit, Person was arrested. After Person

was released on bond, he told Bragg and Tucker that the police

were going to seize his bank accounts. Tucker hatched a plan to

avoid the seizure. Person wrote Tucker a $22,000 check which

Tucker cashed at a nearby SunTrust Bank branch. Tucker returned

with $9,000 cash and a $13,000 cashier’s check. He told Person

that the bank did not have the full $22,000 cash on hand and

that he would find another way to cash out the remaining money

to give to Person. However, Person never received any

additional money from Tucker.

5
 In 2005, Hassell and Bragg attempted to purchase “Bada

Bing” nightclub in Virginia Beach. However, after learning that

Hassell and Bragg were felons, the owner refused to sell the

club because felons would not be able to obtain a Virginia

liquor license. Hassell and Bragg testified that they offered

Tucker money to act as the “front man.” Tucker agreed and was

able to purchase the club in his name and take out a liquor

license. To disguise the source of the funds used to make the

down payment on the nightclub, Tucker arranged to have a third

person, James Hunter, wire Hassell and Bragg’s narcotics-derived

cash to the MidAtlantic Commodities bank account. Hassell and

Bragg paid Tucker to assist in the wire transfer and purchase of

Bada Bing nightclub, and to remain as the front man while they

operated the business.

B.

Upon his arrest in September 2009, the court appointed

attorney John C. Gardener to represent Tucker. In November

2009, Tucker submitted a letter motion to the district court

requesting that a new attorney be assigned to him. After

Gardener’s replacement, David Bouchard, withdrew due to a

conflict of interest, the court appointed a third attorney to

represent Tucker, Jon M. Babineau.

In May 2011, Tucker pled guilty to conspiracy to commit

money laundering. However, in July 2011, two weeks before

6
sentencing, Tucker filed another motion for new counsel and also

moved to withdraw his plea. The court granted both motions and

set trial for December 2011. Jennifer T. Stanton was appointed

as Tucker’s fourth attorney.

On October 6, 2011, Tucker filed yet another motion for new

counsel. The court held a hearing to consider the motion on

October 13, 2011. At the hearing, Tucker expressed his

frustration with Ms. Stanton’s refusal to file certain motions

he urged her to file. The court explained that the motions

Tucker sought to file were frivolous, and that Ms. Stanton was

under an obligation not to file frivolous motions. Tucker

further explained that he wanted to part ways with Ms. Stanton

because he did not feel she adequately reviewed his case, and

because “females have their method of doing things and I can’t

change that.” Finally, Tucker asked to proceed pro se if the

court did not grant his motion for new counsel. After receiving

assurances from Ms. Stanton that she was able to continue as

Tucker’s lawyer, the court denied Tucker’s motion for new

counsel and directed Ms. Stanton and the Government to brief

whether Tucker should be able to proceed pro se.

On November 8, 2011, the court held a hearing on Tucker’s

motion to proceed pro se. The court asked Tucker a series of

questions to gauge his understanding of the charges and

applicable sentencing guidelines for each count against him, the

7
trial process, and the Federal Rules of Evidence and Federal

Rules of Criminal Procedure. Tucker’s answers showed that he

misunderstood the penalties he faced if convicted, had no

experience with the trial process and did not understand the

Federal Rules of Evidence or Federal Rules of Criminal

Procedure. Tucker also explained that if he were to proceed pro

se, he would need additional time to prepare for trial. In a

written order dated November 14, 2011, the court denied Tucker’s

motion to proceed pro se.

On December 6, 2011, the day before trial was set to begin,

Tucker entered into a second plea agreement. The court deferred

acceptance of the plea agreement pending preparation of a

presentence report and set sentencing for April 27, 2012.

Sentencing was subsequently moved to June 21, 2012, after the

court granted Tucker’s motion for a continuance. Three days

before sentencing, Tucker moved to withdraw his second guilty

plea. The court, which had yet to accept and enter the plea,

granted the motion to withdraw.

On August 14, 2012, a jury found Tucker guilty on each of

the eleven counts remaining in the thirteen-count superseding

8
indictment. 2 Tucker filed a timely appeal of which we have

jurisdiction pursuant to 28 U.S.C. § 1291.

II.

Tucker argues on appeal that the evidence presented at

trial was not sufficient to sustain a conviction on any of the

counts charged in the superseding indictment and that the

district court therefore erred when it denied his motion for

judgment of acquittal.

We review a district court’s denial of a motion for

judgment of acquittal de novo. United States v. Green, 599 F.3d

360, 367 (4th Cir. 2010). Where there is a challenge to the

sufficiency of the evidence, as there is here, we must sustain

2
Two counts in the superseding indictment had been
dismissed. Tucker was found guilty of: conspiracy to
distribute and possess with intent to distribute five kilograms
or more of cocaine and fifty kilograms or more of marijuana in
violation of 21 U.S.C. § 846; conspiracy to launder money in
violation of 18 U.S.C. §§ 1956(h); possession with intent to
distribute five kilograms or more of cocaine in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2; three counts of interstate
travel in aid of racketeering in violation of 18 U.S.C. §
1952(a)(3) and 18 U.S.C. § 2; possession with intent to
distribute approximately thirty pounds of marijuana in violation
of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; possession with
intent to distribute between 500 grams and five kilograms of
cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2;
laundering of monetary instruments in violation of 18 U.S.C. §
1956 and 18 U.S.C. § 2; and engaging in a monetary transaction
in property derived from specified unlawful activity in
violation of 18 U.S.C. § 1957 and 18 U.S.C. § 2.

9
the jury verdict “if there is substantial evidence, taking the

view most favorable to the Government, to support [the

conviction].” United States v. Burgos, 94 F.3d 849, 862 (4th

Cir. 1996) (en banc) (quoting United States v. Glasser, 315 U.S.

60, 80 (1942)). In other words, we must not embark on the task

of re-weighing the evidence or assessing the credibility of the

witnesses. United States v. Kelly, 510 F.3d 433, 440 (4th Cir.

2007). Instead, we assume that the jury has “resolved any

discrepancies in favor of the [G]overnment.” Id. Ultimately,

we must determine whether “any rational trier of facts could

have found the defendant guilty beyond a reasonable doubt.”

United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).

Tucker’s challenge to his drug-related convictions centers

on his contention that the prosecution did not carry its burden

on the intent or knowledge element of each of the charges. 3

3
On the charge of conspiracy to distribute and possess with
intent to distribute cocaine and marijuana, the Government
carried the burden to prove that: “(1) an agreement to
distribute and possess cocaine with intent to distribute existed
between two or more persons; (2) the defendant knew of the
conspiracy; and (3) the defendant knowingly and voluntarily
became a part of this conspiracy.” United States v. Yearwood,
518 F.3d 220, 225-26 (4th Cir. 2008). On charges of possession
with intent to distribute, the Government carried the burden to
prove: (1) possession of the [narcotic]; (2) knowledge of this
possession; and (3) intention to distribute the [narcotic]. See
Burgos, 94 F.3d at 873. Possession may be actual or
constructive. United States v. Rusher, 966 F.2d 868, 878 (4th
Cir. 1992). On charges of interstate travel in aid of
racketeering, the Government carried the burden to prove:
(Continued)
10
Specifically, he argues there was no evidence establishing that

he was aware that the trucking businesses he formed and

subsequently managed were being used to run drugs. For

instance, Tucker points out that when Hassell asked him to drive

to Atlanta to exchange money for drugs, Hassell only stated that

he was going to get “some things.” Further, while Hassell and

others testified at trial that Tucker was occasionally present

at the warehouse when drugs were being handled and hid, there

was no direct evidence that Tucker actually saw the drugs.

Tucker seeks to cherry pick from the evidence in an effort

to concoct a viable argument on appeal. The cumulative evidence

against him is not just sufficient, it is overwhelming. Several

of the Government’s witnesses testified that Tucker was aware of

their long-term involvement in drug trafficking, and that he set

up a variety of businesses to assist in their criminal

operations. The evidence also showed that Tucker took a direct

role in Hassell and Bragg’s illicit enterprise. Testimony from

Hassell and Bragg established that Tucker coordinated the

transport of large quantities of marijuana from Texas to the

(1) travel between states; (2) with the intent to promote,
manage, establish, carry on, or facilitate the promotion,
management, establishment, or carrying on, of any unlawful
activity; and (3) performance or attempt to perform the unlawful
acts thereafter. 18 U.S.C. § 1952(a); see also United States v.
Hayes, 775 F.2d 1279, 1282 (4th Cir. 1985).

11
warehouse Tucker leased in Virginia under the name of

MidAtlantic Commodities. And, on more than one occasion, Tucker

himself drove large quantities of cocaine from Atlanta to the

warehouse in Virginia.

Tucker also found other creative ways to support his co-

conspirators. Just weeks after watching Person cook large

quantities of powder cocaine into crack cocaine, Tucker helped

Person hide money before police could seize his accounts. On

another occasion, Tucker fabricated documents and lied under

oath to secure the return of nearly $50,000 that had been seized

by North Carolina police when Bragg was en route to make a drug

purchase.

Cumulatively, this evidence is more than sufficient to

substantiate Tucker’s knowledge that he was intricately involved

in drug trafficking activities as charged. While there may not

be direct evidence that Tucker actually watched Hassell put

cocaine into the trailer of the truck he was driving, or that he

had explicit conversations with co-conspirators about how they

could use the various companies to hide their drug-related

operations, the jury had sufficient evidence to connect the

dots. It is well established that circumstantial evidence, not

just direct evidence, must be considered when assessing

sufficiency of the evidence. United States v. Grow, 394 F.2d

182, 201 (4th Cir. 1968). Indeed, “circumstantial evidence is

12
treated no differently than direct evidence,” and may itself be

sufficient to support the jury’s verdict. United States v.

Jackson, 863 F.2d 1168, 1173 (4th Cir. 1989). It is clear here

that the combination of direct and circumstantial evidence is

such that a reasonable juror could have concluded that Tucker

was aware of his involvement in drug trafficking and was guilty

of the drug-related crimes as charged.

Tucker next argues that the Government presented

insufficient evidence to sustain a conviction of conspiracy to

launder money. The Government carried the burden to prove

beyond a reasonable doubt that: (1) a conspiracy to commit

money laundering was in existence; (2) during the conspiracy,

the defendant knew that the proceeds to be concealed had been

derived from an illegal activity, and (3) the defendant

knowingly joined in the conspiracy. See United States v.

Alerre, 430 F.3d 681, 693-94 (4th Cir. 2005) (stating the burden

of proof for conspiracy related to promotion money laundering);

United States v. Wemmering, 232 F. App’x 372, 374-75 (4th Cir.

2007) (unpublished) (equating the conspiracy standard for

promotion money laundering with concealment money laundering).

We find there was sufficient basis for the jury’s final

determination that Tucker had conspired to launder money. As

illustrated above, there was extensive testimony from Hassell,

Bragg, Person, and several other co-conspirators evidencing an

13
expansive collaborative drug operation. The group relied on

Tucker as a “front man” who could: assist in setting up

businesses that appeared legitimate, spend drug proceeds on

legitimate purchases, and reclaim or hide cash that had been or

might be seized by the police. As noted above, multiple

witnesses testified at trial that Tucker was well aware of their

involvement in the narcotics trade and that he knew that his

assistance would help them in carrying out their illicit

activities. The evidence presented at trial was sufficient to

support the jury’s verdict.

Finally, Tucker argues that no evidence was presented that

he had the requisite knowledge to substantiate a guilty verdict

on charges related to the purchase of Bada Bing nightclub. 4

4
These charges include laundering of monetary instruments
in violation of 18 U.S.C. § 1956 and 18 U.S.C. § 2, and engaging
in a monetary transaction in property derived from specified
unlawful activity in violation of 18 U.S.C. § 1957 and 18 U.S.C.
§ 2. On the laundering of monetary instruments charges, the
Government carried the burden to prove that the defendant:
(1) knew the property involved in a financial transaction
represented proceeds from an unlawful activity; (2) conducted or
attempted to conduct a financial transaction involving such
proceeds; (3) with the intent to promote the carrying on of the
specified unlawful activity or knowing that the transaction was
at least in part designed to conceal or disguise the nature,
location, source, ownership, or control of the proceeds. 18
U.S.C. § 1956(a)(1); United States v. Alford, 999 F.2d 818, 823
(5th Cir. 1993). On the charge of engaging in a monetary
transaction in property derived from a specified unlawful
activity, the Government carried the burden to prove that the
defendant “knowingly engage[d] . . . in a monetary transaction
in criminally derived property of a value greater than $10,000
(Continued)
14
Extensive testimony was presented at trial, however,

establishing that Tucker agreed to act as the front man so that

Hassell and Bragg could purchase the business and obtain a

liquor license. Further, multiple witnesses testified to

Tucker’s coordination of a wire transfer of at least $100,000 of

Hassell and Bragg’s narcotics-derived cash to the MidAtlantic

Commodities bank account. Likewise, there is testimony that the

wire transfer was designed to conceal the source of the funds

and to make it appear that the money used for the down payment

on Bada Bing nightclub came from profit earned at MidAtlantic

Commodities. The cumulative evidence presented provides

sufficient basis for the conclusion that Tucker was well aware

of his involvement in a drug-related scheme. The jury’s verdict

was adequately supported.

III.

Tucker next argues that the district court erred when it

denied his request to proceed at trial pro se. We review a

district court’s legal rulings on pro se representation de novo,

and [was] derived from specified unlawful activity” such as
narcotics distribution. 18 U.S.C. § 1957; see United States v.
Mansoori, 480 F.3d 514 (7th Cir. 2007) (applying 18 U.S.C.
§ 1957 to narcotics distribution proceeds).

15
and all findings of fact related to its ruling for clear error.

United States v. Bush, 404 F.3d 263, 270 (4th Cir. 2005).

The U.S. Supreme Court has stated that “forcing a lawyer

upon an unwilling defendant is contrary to his basic right to

defend himself if he truly wants to do so.” Faretta v.

California, 422 U.S. 806, 817 (1975). While a defendant’s

decision must be knowing and intelligent, his technical legal

knowledge is “not relevant to an assessment of his knowing

exercise of the right to defend himself.” Id. at 836. The

right to self-representation is not absolute, however. “The

government’s interest in ensuring the integrity and efficiency

of the trial at times outweighs the defendant’s interest in

acting as his own lawyer.” United States v. Bernard, 708 F.3d

583, 588 (4th Cir. 2013) (internal quotations omitted). As

such, a defendant’s assertion of his right to self-

representation must be: “(1) clear and unequivocal, (2)

knowing, intelligent and voluntary; and (3) timely.” United

States v. Frazier-El, 204 F.3d 553, 558 (4th Cir. 2000)

(internal citations omitted). A court may determine that an

assertion of the right to self-representation is not clear and

unequivocal where the defendant’s actions suggest a desire to

delay or manipulate the system more than a desire to self-

represent. Id. at 560.

16
 Here, the district court held that Tucker had not asserted

his right to counsel in a clear and unequivocal manner. The

court’s holding was based on a factual finding that Tucker’s

true motivation for proceeding pro se was to manipulate the

system and drag out an already long trial process while he

remained free on bond. Considering the record as a whole, as we

must, see United States v. Singleton, 107 F.3d 1091, 1097 (4th

Cir. 1997), we cannot conclude that the district court clearly

erred in arriving at its holding.

Tucker’s first motion to proceed pro se came alongside a

motion for new counsel. In fact, Tucker was on his fourth

attorney when he made the motion. He made clear during the

hearing that he sought new counsel, or in the alternative to

proceed pro se, because present counsel refused to file numerous

frivolous motions. A court is not required to grant a motion

for self-representation where the defendant’s motivation is to

file frivolous motions that appointed counsel would not file.

Frazier-El, 204 F.3d at 560; United States v. Mackovich, 209

F.3d 1227, 1237 (10th Cir. 2000). Given that Tucker had in fact

sought to file frivolous pro se motions, the district court did

not clearly err in making the findings that form the basis of

its conclusion here.

The district court also made a factual finding that Tucker

sought to delay his trial by proceeding pro se. A defendant is

17
not permitted to use the right to self-representation as a

“tactic for delay.” Bush, 404 F.3d at 272 (citing Mackovich,

209 F.3d at 1237. By repeatedly changing counsel and

withdrawing his first plea agreement just before sentencing,

Tucker had already extended his time on bond over two years.

During the hearing on his motion, he informed the court that he

would need even more time to prepare his defense if his motion

were granted. Given the procedural trajectory of the trial and

the repeated delays, we cannot find that the district court

clearly erred in holding that Tucker sought to proceed pro se

for the purpose of delaying his trial and remaining free on

bond. 5

IV.

For the reasons stated above, we affirm Tucker’s

convictions. We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

5
The court made additional factual findings pertaining to
Tucker’s understanding of the law and judicial process. To the
extent that the court sought to gauge whether Tucker had
sufficient technical legal knowledge to exercise his right to
self-representation, it was legal error. See Faretta, 422 U.S.
at 836. However, we need not reach this issue because the
factual findings related to Tucker’s attempt at manipulating and
delaying the judicial process are independently sufficient to
affirm the district court’s denial of his motion to proceed pro
se.

18
before the Court and argument would not aid the decisional

process.

AFFIRMED

19