United States v. Michael Darby

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4368

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL ANTHONY DARBY,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Margaret B. Seymour, District
Judge. (5:07-cr-01253-MBS-1)

Argued: September 21, 2011 Decided: November 29, 2011

Before DUNCAN and AGEE, Circuit Judges, and Damon J. KEITH,
Senior Circuit Judge of the United States Court of Appeals for
the Sixth Circuit, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: William Michael Duncan, AUSTIN & ROGERS, PA, Columbia,
South Carolina, for Appellant. John David Rowell, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
ON BRIEF: William N. Nettles, United States Attorney, Columbia,
South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Appellant Michael Darby contests the sufficiency of

the evidence leading to his conviction on one count of

conspiracy to possess with intent to distribute 500 grams or

more of cocaine and 50 grams or more of cocaine base, in

violation of 21 U.S.C. § 846, and one count of possession with

intent to distribute five grams or more of cocaine base, in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B). Darby also

challenges the resulting 292-month sentenced imposed by the

district court. For the reasons that follow, we affirm.

I.

A.

On October 17, 2007, Michael Darby and codefendant

Melvin Wright were both indicted in Columbia, South Carolina on

charges of conspiracy to possess with intent to distribute and

to distribute 500 grams or more of cocaine and 50 grams or more

of cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1),

841(b)(1)(A) (“Count One”), and possession with intent to

distribute and distribution of five grams or more of cocaine

base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B),

841(b)(1)(C) (“Count Two”). Count One of the indictment alleges

that the conspiracy begins “at least in the middle to late part

of 2003.” The charges largely stem from a controlled purchase of

2
crack cocaine whereby Darby’s ex-girlfriend, Keesha Williams,

agreed to act under the advisement of the Orangeburg Department

of Public Safety and purchase crack cocaine from Darby while

employing audio and video recording devices.

On November 30, 2006, unbeknownst to Michael Darby,

Keesha Williams called Lieutenant Samuel Jenkins of the

Orangeburg Department of Public Safety explaining that she could

“help him bring down Michael Darby” by getting Darby to sell her

narcotics. Williams agreed to have her communications with

Darby recorded. In one recorded phone conversation, Williams

began by inquiring if the receiver was Darby and Darby replied

affirmatively. Williams continued by inquiring if she could

purchase an “ounce” for her cousin. Darby replied, “I probably

could get it to him, but I don’t want to meet him.” Darby

established the purchase price for the ounce of cocaine to be

$800.

The next day, on December 1, 2006, Williams drove to

Darby’s apartment with audio and video recording devices

installed in her car. Upon arriving at Darby’s apartment, Darby

informed Williams that he could not sell Williams the cocaine at

that time because he had to still “cook it up.” Darby explained

that he only had “salt,” or powder form of cocaine, and not

“hard,” the crack cocaine that Williams sought to purchase.

Darby informed Williams that the transaction would take place at

3
codefendant Melvin Wright’s residence and that the cost would

increase to $850. Though Darby’s face is not captured in the

video, his voice is identified in an audio recording. Williams

drove to Wright’s residence after obtaining an additional $50 to

cover the price increase of the crack cocaine. After Williams

arrived at Wright’s house, she witnessed Darby arrive and enter

Wright’s house without speaking. Wright actually conducted the

drug sale by handing Williams crack cocaine through the window.

Shortly after the transaction between Williams and Wright,

Williams called Darby at the behest of Lt. Jenkins to inquire

why Darby did not personally deliver the crack cocaine to her

and instead chose to involve Wright. Darby replied that Wright

makes all of his transactions. Williams gave the crack cocaine

to Lt. Jenkins. Williams underwent a comprehensive “strip”

search both before she drove to Darby’s apartment on December 1,

2006 and after she handed the drugs over to Lt. Jenkins.

The Government established the foregoing facts through

the testimony of Keesha Williams. The government also produced

several audio and video recordings. An audio recording revealed

the initial phone conversation between Williams and Darby about

the drug sale. A video recording from the camera installed in

Williams’s car captured the drug transaction between Williams

and Wright. A chemical analysis established that Williams

purchased 23.97 grams of crack cocaine.

4
 The Government also called Joe Moultrie, a cooperating

federal inmate, to testify about his prior drug dealings with

Darby. Moultrie testified that he was a supplier for Darby and

began supplying him with crack cocaine in 2002 when he sold

Darby 28 grams of crack cocaine for $900. According to

Moultrie, he supplied Darby with at least 28 grams of crack

cocaine or more at least once or twice a month until Moultrie’s

arrest in 2004. Moultrie further testified that, by agreement,

he would supply Darby with the crack cocaine and Darby would pay

him later. In total, Moultrie estimated that he sold Darby five

kilograms during his time supplying Darby with cocaine.

The Government also called another cooperating federal

inmate and former drug dealer, Stacy Shannon, to testify

pursuant to a written plea agreement in which he had received a

sentence reduction. Shannon testified that he began dealing

narcotics with Darby in 2003 when Darby came to him and

requested to buy four and a half ounces of crack cocaine. He

further testified that shortly thereafter, Darby began

purchasing between 135 grams and two kilograms of cocaine powder

from him. Shannon testified that Wright would often accompany

Darby when Shannon conducted drug transactions with Darby.

Shannon estimated that he supplied Darby with at least 200

kilograms of cocaine out of the 500 kilograms of cocaine he

received while dealing cocaine.

5
 Special Agent Stacy Brown with the Bureau of Alcohol,

Tobacco, Firearms and Explosives also testified for the

Government. Special Agent Brown provided the controlled funds

for the transaction and testified that he was present on

December 1, 2006 for the controlled purchase and the subsequent

arrest of Darby. He further testified that after he advised

Darby of his Miranda rights, Darby voluntarily made the

statement that he was purchasing kilogram and half-kilogram

quantities from a supplier in Mexico every two weeks for four

months. Special Agent Brown testified that Darby also stated

that he had purchased approximately 5 kilograms in total over

the course of the four months he purchased cocaine from this

supplier.

B.

On December 19, 2008, a jury found Darby guilty of

both the conspiracy charge (Count One) and the distribution

charge (Count Two). The same jury found Wright not guilty on

the conspiracy charge and guilty on the distribution charge.

Darby filed a motion for acquittal on December 24, 2008,

claiming that Wright’s acquittal on the conspiracy charge leaves

insufficient evidence that Darby conspired with anybody. He

further claimed that insufficient evidence existed to support a

6
guilty verdict on Count Two. The district court denied the

motion in an order filed April 20, 2009.

On January 4, 2010, the district court sentenced Darby

to 292 months in prison. The 292 months was within the

sentencing guidelines and based upon the court finding that

Darby was responsible for at least 200 kilograms of cocaine

throughout the conspiracy, putting him at a base offense level

of 38 pursuant to U.S.S.G. § 2D1.1(c)(1). The court also applied

a firearm enhancement of two levels pursuant to U.S.S.G. §

2D1.1(b)(1). During sentencing, Darby submitted a motion to

undergo a psychiatric evaluation to determine whether a lesser

sentence would serve the goals of sentencing in Darby’s case.

Darby requested an authorization of $3,500.00 in funds for the

evaluation. The court instead authorized $1,600. When new

counsel was appointed for Darby, Darby submitted a supplemental

motion requesting $3,500 for an evaluation. The court denied

the motion. This appeal followed.

II.

Darby appeals the district court’s denial of his

motion for acquittal and his 292 month sentence. Darby contends

that the guilty verdict on Counts One and Two was not supported

by substantial evidence. As to Count One, Darby argues that

there was insufficient evidence that he conspired to distribute

7
crack cocaine with anybody other than Wright, and Wright’s

acquittal on the conspiracy count creates insufficient evidence

that he conspired with Wright. As to Count Two, Darby argues

generally that there is insubstantial evidence that Darby is

guilty of possession with intent to distribute and distribution

of five grams or more of cocaine base.

Darby further challenges his sentence as being

unreasonable and in violation of 18 U.S.C. § 3553(a).

Specifically, Darby contests the district court’s: (1) finding

that Darby distributed at least 200 kilograms of cocaine; (2)

application of the firearm enhancement; and (3) refusal to grant

additional funds for a psychiatric evaluation. We discuss each

argument in turn.

A.

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

acquittal de novo. United States v. Green, 599 U.S. 360, 267

(4th Cir. 2010). In reviewing the sufficiency of the evidence

to support a conviction, we assess whether a rational trier of

fact could have found the essential elements of the crime beyond

a reasonable doubt when viewing the evidence in the light most

favorable to the prosecution. Jackson v. Virginia, 443 U.S.

307, 319 (1979). We must uphold the jury’s verdict if there is

substantial evidence to support the verdict when viewing the

8
evidence most favorable to the Government. Glasser v. United

States, 315 U.S. 60, 80 (1942); United States v. Beidler, 110

F.3d 1064, 1067 (4th Cir. 1997). 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.” United States v. Burgos, 94

F.3d 849, 862 (4th Cir. 1996)(en banc)(citation omitted). A

reviewing court does not assess the credibility of witnesses,

but rather assumes “that the jury resolved all contradictions in

testimony in favor of the Government.” Green, 599 F.3d at 367

(quoting United States v. United Med. & Surgical Supply Corp.,

989 F.2d 1390, 1402 (4th Cir. 1993).

1.

As a preliminary matter, we reject the notion that

Darby’s conviction should be vacated on the conspiracy charge

merely because his co-conspirator Melvin Wright was acquitted on

the same charge. It is well established that an acquittal of

the appellant’s alleged co-conspirator does not necessitate that

the appellant’s conviction be vacated. See United States v.

Powell, 469 U.S. 57, 65 (1984)(holding that a defendant cannot

challenge his conviction merely because it is inconsistent with

jury’s verdict of acquittal on another count); United States v.

Collins, 412 F.3d 515, 519-20 (4th Cir. 2005)(refusing to

9
overturn a conspiracy conviction merely because a co-conspirator

was acquitted by the same jury); United States v. Thomas, 900

F.3d 37, 40 (4th Cir. 2002)(holding that an acquittal of sole

co-conspirator does not require reversal of defendant’s

conviction); see also United States v. Andrews, 850 F.3d 1557,

1561 (11th Cir. 1988)(en banc)(“Consistent verdicts are

unrequired in joint trials for conspiracy: where all but one of

the charged conspirators are acquitted, the verdict against the

one can stand.”); United States v. Vales-Valencia, 823 F.3d 381,

382 (9th Cir. 1987) (“the acquittal of all conspirators but one

does not necessarily indicate that the jury found no agreement

to act”). Thus, a jury can acquit Wright and still find that a

conspiracy existed between Darby and Wright.

Darby seems to argue more precisely that given

Wright’s acquittal, the totality of the evidence does not

substantially show that Darby conspired with either Wright or

anyone else. We disagree. To prove a conspiracy to possess

cocaine base with intent to distribute, the Government must

establish that:(1) an agreement to 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. See

United States v. Collazo, 732 F.2d 1200, 1205 (4th Cir. 1984).

Viewing the evidence most favorably to the Government, we find

10
that there was sufficient evidence to support a conviction for

the conspiracy charge.

The evidence presented through Keesha Williams’s

testimony established an agreement by Darby to possess cocaine

with the intent to distribute. In one recorded conversation

between Williams and Darby, he agrees to sell Williams an

“ounce” for her cousin, commenting that Darby could get the

cocaine to him, but did not want to meet Williams’s cousin.

When Williams drove to meet Darby on the night of the controlled

purchase, Darby instructed Williams to meet him at Wright’s

residence to buy the crack cocaine. This arrangement of selling

illegal drugs at Wright’s residence where the cocaine had to be

“cooked up” at the very least evinces an agreement between Darby

and Wright. Darby’s presence at Wright’s residence after his

conversation with Williams corroborates this agreement and

further establishes that he knowingly and voluntarily became a

part in this conspiracy. Darby then told Williams, after the

controlled purchase, that he used Wright to make all his

purchases. This is patent evidence that a conspiracy existed to

distribute drugs between Darby and Wright.

Notwithstanding the substantial evidence of a

conspiracy established by Williams’s testimony, Shannon provided

further evidence of such a conspiracy. Shannon testified that

he sold a total of 200 kilograms of cocaine to Darby, who agreed

11
to pay Shannon for the cocaine after he sold it. This agreement

between Shannon and Darby is also sufficient evidence to

establish a conspiracy. Shannon’s testimony that Wright would

often accompany Darby during his drug transactions is

circumstantial evidence that a conspiracy existed between Wright

and Darby. Moreover, Moultrie’s testimony that he supplied

Darby with cocaine establishes a conspiratorial agreement

between Darby and Moultrie.

Since we find that there was sufficient evidence from

which a reasonable juror could find that Darby was engaged in a

conspiracy between two or more persons, we briefly address the

charge in Count One that the conspiracy involved a distribution

of 500 grams or more of cocaine and 50 grams or more with

cocaine base. It is sufficient to note that Shannon’s testimony

that Darby received 200 kilograms of cocaine, Moultrie’s

testimony that he sold Darby five kilograms of cocaine, and

Darby’s own statement that he purchased five kilograms of

cocaine from a supplier in Mexico all establish that at least

500 grams of cocaine and 50 grams of cocaine base was intended

to be distributed throughout the conspiracy. We therefore find

that the evidence was sufficient to support a guilty verdict as

to Count One.

12
 2.

Darby’s contention that there is insufficient evidence

to convict him on Count Two is equally unavailing. Darby

asserts that there is little direct evidence linking him to the

distribution of the crack cocaine because that the video

recording does not show him exchanging crack cocaine for money

and there were no phone records admitted to confirm that

Williams was in fact talking to Darby. Darby argues that his

conviction on Count Two is almost entirely based on what he

believes to be a biased witness--Keesha Williams.

Williams’s testimony against Darby is sufficient to

uphold his conviction on Count Two. First, there is no

requirement that the prosecution prove its case by direct

evidence. Although there may not be a wealth of the direct and

red-handed evidence that Darby would like to see, the proper

standard is whether there exists substantial evidence--direct or

circumstantial--for a rational juror to support a guilty

verdict. In this case, there was a controlled purchase in which

Darby was present at the scene of the transaction after

responding to an offer to purchase drugs for a price that he set

over a recorded phone conversation. Williams and Special Agent

Brown both testified that Darby was present at the controlled

purchase where Williams purchased 23 grams of crack cocaine.

The fact that Wright handed the cocaine to Williams at the

13
behest of Darby does not absolve Darby from the charge of Count

Two. Darby’s own statement to Special Agent Brown that he

purchased approximately 5 kilograms from his supplier over the

preceding four months coupled with the evidence that Darby

actively sold crack cocaine, as evidenced by the December 1,

2006 purchase, is sufficient to uphold Count Two.

Darby’s argument discounting Williams’s testimony and

undermining the credibility of other prosecutorial witnesses

gains no traction here. As discussed above, a reviewing court

does not assess the credibility of witnesses, but rather assumes

that the jury resolved issues of credibility in favor of the

Government.

B.

Darby challenges the district court’s finding at

sentencing which holds him accountable for the distribution of

200 kilograms of cocaine with 5 kilograms of cocaine base

throughout the conspiracy charged in Count One. This finding

was necessary for the court to apply a base offense level of 38

pursuant to U.S.S.G. § 2D1.1(C)(1).

1.

This court reviews a district court’s calculation of

drugs attributable to a defendant for clear error. United

14
States v. Kiulin, 360 F.3d 456, 461 (4th Cir. 2004). The

sentencing guidelines advise the court that in a scenario “where

there is not drug seizure or the amount seized does not reflect

the scale of the offense, the court shall approximate the

quantity of the controlled substance.” U.S.S.G. § 2D1.1,

Application Notes 12. We find that there is sufficient evidence

in the record to support the district court finding that Darby

was responsible for 200 kilograms of powder cocaine and 5

kilograms of cocaine base.

The 23.8 grams seized from Williams after the

controlled purchase does not reflect the scale of Darby’s

conspiracy to distribute cocaine, so the district court was

within its discretion to approximate the amount of cocaine for

sentencing purposes. In determining the amount of cocaine to

attribute to Darby, the district court properly relied upon the

testimony of Shannon and Moultrie. Shannon testified that he

supplied Darby a total of 200 kilograms of powder cocaine.

Moultrie testified that he had sold Darby a total of 5 kilograms

of cocaine base to Darby. We decline to hold that the district

court clearly erred in relying on these two independent bases to

approximate the quantity of cocaine for which Darby was

responsible.

15
 2.

Darby also contests the district court’s application

of the firearm enhancement pursuant to U.S.S.G. § 2D1.1(b)(1),

which increased the defendant’s offense level by two levels. We

review a district court’s application of a firearm enhancement

under this provision for clear error. United States v. Manigan,

592 F.3d 621, 626 (4th Cir. 2010).

The firearm enhancement is proper when “the weapon was

possessed in connection with drug activity that was part of the

same course of conduct or common scheme as the offense of

conviction.” Id. at 628-29 (internal citations omitted). The

Government must prove the facts needed to support a sentencing

enhancement by a preponderance of the evidence. The enhancement

“should be applied if the weapon was present, unless it is

clearly improbable that the weapon was connected with the

offense.” U.S.S.G. § 2D1.1, Application Note 3.

To support the firearm enhancement, the Government

relied on assertions in the presentence investigation report

(“PSR”) and Darby’s statement to Special Agent Brown. The PSR

reflected that upon Darby’s arrest at his residence on November

8, 2007, agents found 3 firearms, including a .45 caliber pistol

Darby admittedly retrieved from his nightstand when the agents

entered his home to execute a search warrant. The Government

proffered that 400 grams of powder cocaine was found in Darby’s

16
master bedroom and 471 grams of powder cocaine was found in

total. Further, agents found 39.4 grams of crack cocaine, a set

of digital scales, body armor, and $5,611.00 in U.S. currency at

Darby’s residence. We find that the Government met the

preponderance of evidence standard in arguing that the guns,

cocaine, drug paraphernalia, and body armor all indicate that

Darby used the guns to protect himself and the drugs, which in

turn shows that the weapons were used in connection to the

charged offense. We therefore hold that there was no clear

error on part of the district court in applying the firearm

enhancement.

3.

Finally, Darby challenges the district court’s refusal

to pay the $3,500 fee requested by Darby to pay for the

psychiatrist of his choice. The court originally approved a

payment of $1,600 for Darby to hire a psychiatrist, but did not

approve the extra $1,900 that Darby argued was necessary to

obtain his preferred psychiatrist. He argues that had the court

granted his request, his preferred psychiatrist’s evaluation

would have assisted in determining mitigation factors. Darby

contends that the district court ultimately abused its

discretion by denying Darby $1,900. We disagree.

17
 We can find no case law, nor does Darby cite any, that

stands for the proposition that a district court must approve

the exact amount of funds that a defendant requests to enable

him to hire the psychiatrist of his choice for the purpose of

exploring mitigating factors during the sentencing phase of

trial. Had this request been submitted to determine whether

Darby was competent to stand trial, then we would inquire

whether there was reasonable cause to believe that Darby was

suffering from a mental defect which rendered him unable to

understand the nature and consequences of the proceedings

against him. See 18 U.S.C.A. § 4241(a) (West 2000 & Supp.

2007). However, this is not the case. Darby’s argument, aside

from having no basis in law, is highly speculative. He does not

assert his incompetency either during the trial or after.

Rather, he claims that an evaluation may have produced an

opinion that would cause the district court to depart downward

from the advisory guidelines. The only consideration that Darby

points to is Darby’s age and lack of a prior record. This is not

enough to find that the court abused its discretion. Moreover,

the court considered Darby’s lack of a prior record in assigning

him a Criminal History Category of I. The court ultimately

imposed a sentence that was on the lower end of the advisory

sentencing guidelines.

18
 We find it important to highlight that the district

court did grant Darby funds to procure a psychiatric evaluation.

However minimal the approved funds may have been, Darby does not

argue that the funds granted would be insufficient to hire a

psychiatrist to conduct an evaluation--only that it was

insufficient to hire his preferred psychiatrist.

We find that the court did not abuse its discretion in

denying Darby’s motion for additional funds for the purposes of

a psychiatric evaluation. We further find that the sentence

rendered by the district court was not an abuse of discretion as

it was not only within the advisory sentencing guidelines, it

was also at the lower end of those guidelines.

III.

For the foregoing reasons, we affirm the judgment of

the district court.

AFFIRMED

19