UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5500
RYAN NEWSOME,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert J. Staker, Senior District Judge.
(CR-94-83)
Submitted: April 15, 1996
Decided: April 29, 1996
Before ERVIN and MOTZ, Circuit Judges, and CHAPMAN,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Ronald Edward Schwartz, Cincinnati, Ohio, for Appellant. Rebec-
ca A. Betts, United States Attorney, Stephanie D. Thacker, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Ryan Newsome was convicted by a jury of conspiracy to possess
crack cocaine from July 1992 to May 1994, 21 U.S.C.A. § 846 (West
Supp. 1995), and distribution of crack cocaine on April 15, 1994. 21
U.S.C.A. § 841 (West 1981 & Supp. 1995). He was sentenced to a
term of 292 months imprisonment. Newsome appeals his conviction
and his sentence. We affirm.
Newsome grew up in Huntington, West Virginia. After graduating
from high school in 1988, he attended Ohio State University in
Columbus, Ohio, and worked part-time for the University's Depart-
ment of Recreation until his arrest in May 1994.
At Newsome's trial, Tony Hopkins, a confidential informant and
Newsome's cousin, testified that in 1992 he began delivering crack
to dealers in Huntington for Newsome. Hopkins said Newsome also
gave him crack to sell in Huntington in 1992 and 1993, but refused
to deal with Hopkins after Hopkins smoked the crack instead of sell-
ing it. In April 1994, Hopkins began working with drug task force
agents in the Huntington area and, in a number of recorded telephone
calls, agreed to buy an ounce of crack from Newsome in Huntington
for $1300 in cash. The crack was delivered to Hopkins by Brian Fra-
zier, another of Newsome's cousins, on April 15, 1994. A later three-
ounce controlled buy scheduled for May 5, 1994, did not go through.
Newsome and Brian Frazier met Hopkins but became suspicious of
him. Newsome and Frazier were arrested the next day.
Frazier pled guilty to conspiracy and testified at Newsome's trial
that in March 1994 he transported money to Newsome in Ohio and
crack to Newsome's uncle in Huntington. Frazier confirmed his deliv-
ery of a package from Newsome to Hopkins for which Hopkins paid
$1300; Frazier returned the money to Newsome. He also testified that
on the night before his arrest he and Newsome met Hopkins in the
expectation that Hopkins would buy drugs which Newsome had sent
to Huntington via a runner earlier in the day. Newsome's aunt,
Andrea (Angel) Hopkins, testified that she bought crack for her own
use from Newsome in 1993 and sold about six grams of crack for
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Newsome from her apartment in Huntington at the end of 1993 or
early in 1994.
Newsome testified that he never sold crack. He explained his
recorded conversations with Hopkins by stating that he was lying to
Hopkins about possible drug deals in hopes of recovering money he
once loaned to Hopkins to pay a drug debt. Newsome was convicted
of both counts.
Newsome first contends that the evidence was insufficient to con-
vict him of either offense, alleging that the government's witnesses
had reason to lie and that the government failed to prove that he pos-
sessed crack during the aborted deal with Hopkins just before his
arrest. A conviction must be sustained if there is substantial evidence
to support it, taking the view most favorable to the government.
United States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994), cert.
denied, ___ U.S. ___, 63 U.S.L.W. 3563 (U.S. Jan. 23, 1995) (No.
94-7337). The credibility of witnesses is a decision for the jury which
is not susceptible to review. Id. Here, the jury chose to believe the
government's witnesses rather than Newsome. The evidence provided
by Tony Hopkins, Frazier, and Andrea Hopkins was more than ade-
quate to establish that Newsome had conspired to distribute crack and
had possessed crack with the intent to distribute on April 15, 1994,
or at the least had aided and abetted Frazier in doing so.
Newsome maintains that the district court abused its discretion in
excluding as irrelevant certain items he sought to introduce: corre-
spondence from the Columbus Department of Public Safety which
indicated that Newsome had inquired about becoming a police officer
but had failed to show up for an interview, a 1992 pawn ticket for a
ring, and a receipt showing that his vehicle was repossessed and he
paid to recover it.
Rule 402 of the Federal Rules of Evidence provides in part that
"[e]vidence that is not relevant is not admissible." Relevant evidence
is "evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more proba-
ble or less probable than it would be without the evidence." Fed. R.
Evid. 401. The district court has broad discretion to determine
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whether evidence is relevant. United States v. Fernandez, 913 F.2d
148, 155 (4th Cir. 1990).
Newsome argues that the evidence was relevant to show that he
was a law-abiding person who was in financial difficulties rather than
one who was enjoying profits from drug dealing. The court held that
neither an inclination to become a police officer nor financial difficul-
ties were necessarily inconsistent with drug dealing or tended to make
his innocence more probable. We cannot say that the district court
abused its discretion in finding the evidence inadmissible.
Newsome contends that the district court clearly erred in finding
that 1023 grams of crack were attributable to him under USSG
§ 2D1.1* because the government's witnesses were unreliable sources
of information. Factual evidence considered at sentencing must have
some minimal indicia of reliability beyond mere allegation. United
States v. Hicks, 948 F.2d 877, 883 (4th Cir. 1991). However, the gist
of Hopkins's testimony was corroborated by Frazier and Andrea Hop-
kins, and the recorded conversations between Hopkins and Newsome
confirmed Hopkins's testimony concerning certain amounts of crack.
A defendant who disputes information in the presentence report has
the burden of showing that it is unreliable. United States v. Terry, 916
F.2d 157, 162 (4th Cir. 1990). Newsome's blanket denial of any crack
dealing and his assertion that all the witnesses lied did not assist the
district court in determining his relevant conduct. Therefore, we find
that the district court did not clearly err in adopting the finding recom-
mended in the presentence report.
Next, Newsome contends that he was not deserving of a four-level
adjustment under USSG § 3B1.1(a) as a leader in the offense. The
district court found that the conspiracy involved more than five partic-
ipants. They included Newsome; his aunt, Andrea Hopkins; his uncle,
Johnny Newsome; "Kent," his source in Columbus; Anthony Hop-
kins; Brian Frazier; and Kenny Ziegler and Brian Courts, to whom
Hopkins delivered crack before his falling out with Newsome. The
district court found that Ryan Newsome was the moving force in the
conspiracy. It was not necessary, as Newsome argues on appeal, that
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*United States Sentencing Commission, Guidelines Manual (Nov.
1994).
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he "control" at least five other participants. The court's factual finding
was thus not clearly erroneous.
Finally, Newsome asserts that the district court erred in denying his
post-sentencing motion for release on bond pending appeal without
ruling on a conflict of interest claim raised in the motion, i.e., that his
trial attorney was distantly related to government witness Brian Fra-
zier. Newsome later renewed this claim in a motion for bail in this
court, which was denied. In its response to the motion, the govern-
ment submitted an affidavit from the attorney denying any relation to
Frazier.
An actual conflict of interest which adversely affects an attorney's
representation of his client implicates the Sixth Amendment right to
effective assistance of counsel. United States v. Tatum, 943 F.2d 370,
375 (4th Cir. 1991). If a possible conflict situation is brought to the
district court's attention during the trial, the court has a duty to
address it. Id. at 381. In this case, Newsome only raised the issue after
he was sentenced, and then in the context of a bail motion, claiming
that his conviction would likely be reversed because his attorney was
ineffective. We find that the district court did not err in failing to con-
duct an inquiry into the alleged conflict at that point. Nor will we
address Newsome's underlying ineffective assistance claim. The
record does not unambiguously demonstrate ineffectiveness and the
claim would be better raised in a motion filed under 28 U.S.C. § 2255
(1988).
We therefore affirm the conviction and the sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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