United States v. Gray

Filed: July 26, 1996

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 94-5776(L)
(CR-94-6, CR-94-8)

United States of America,

Plaintiff - Appellee,

versus

Homer I. Gray, etc., et al,

Defendants - Appellants.

O R D E R

The Court amends its opinion filed July 17, 1996, as follows:

On page 2, section 1 -- the case number is corrected to read
"No. 94-5776."
For the Court - By Direction

/s/ Bert M. Montague

Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 94-5776

HOMER I. GRAY, a/k/a Sonny,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 94-5801

PAUL E. FRAZIER,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 94-5923

ROBIN L. BRUMBAUGH,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 94-5932

MARK W. DABBS,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 94-5950

MARK T. MCNULTY,
Defendant-Appellant.

Appeals from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CR-94-6, CR-94-8)

Submitted: June 28, 1996

Decided: July 17, 1996

Before WILKINS and WILLIAMS, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Hunt L. Charach, Federal Public Defender, C. Cooper Fulton, Assis-
tant Federal Public Defender, Charleston, West Virginia; Patrick S.
Casey, SCHRADER, BYRD, COMPANION & GURLEY, Wheeling,
West Virginia; Patricia H. Stiller, Morgantown, West Virginia;
David M. Hammer, HAMMER, FERRETTI & SCHIAVONI, Mar-
tinsburg, West Virginia; James M. Pool, Clarksburg, West Virginia;
David A. Downes, Front Royal, Virginia, for Appellants. William D.
Wilmoth, United States Attorney, Thomas O. Mucklow, Assistant
United States Attorney, Sharon L. Potter, Assistant United States
Attorney, Wheeling, West Virginia, for Appellee.

_________________________________________________________________

2
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

These appeals involve two related drug conspiracies in Martins-
burg, West Virginia. Under one indictment, Frazier was convicted of
conspiracy and two counts of cocaine distribution, while Robin Brum-
baugh, Mark McNulty, and Mark Dabbs (Brumbaugh's brother) were
convicted of conspiracy, racketeering, distribution of cocaine and
crack, and possession with intent to distribute. McNulty was also con-
victed of possession of a firearm in relation to a drug trafficking
crime. Subsequently, under a second indictment, Homer Gray and
Paul Frazier pled guilty to distribution of cocaine and Gray pled
guilty to distribution of powder cocaine and crack cocaine. Finding
no merit in any of the issues raised by the Appellants, we affirm.

Background

Robin Brumbaugh's involvement with cocaine began in the late
1980's. In 1991, she and Mark McNulty began living together. Their
friends obtained cocaine and crack from them and gathered at their
house at 508 West Burke Street in Martinsburg to use drugs. They
later moved to Kearneysville and discontinued their drug use and dis-
tribution in approximately late 1992. Mark Dabbs was Brumbaugh's
brother; he and his wife were among those who used drugs with
Brumbaugh and McNulty. Brumbaugh and McNulty got their cocaine
from various sources, including a man known as Eli. Paul Frazier
knew Brumbaugh and McNulty. He was not part of the group who
socialized with them, but was seen a few times using drugs in the
Martinsburg and Kearneysville houses and transacting business with
her in an office in the Burke Street house. Frazier sold cocaine a few
times to William Douglas Taylor, an attorney and a member of Brum-
baugh's drug-using circle, first at McNulty's request and later on sev-
eral other occasions. Taylor also bought cocaine from Homer Gray,
who was at that time Frazier's source for cocaine.

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I. Denial of Severance

Prior to trial, Frazier moved unsuccessfully for severance of the
four counts in which he was named and for severance from the other
defendants in the Brumbaugh/McNulty conspiracy. He asserts that he
should have been tried separately because there was scant evidence
of his involvement in the Brumbaugh/McNulty conspiracy and the
jury was unable to separate the charges against him from the evidence
against his co-defendants. However, defendants charged in the same
conspiracy normally should be tried together. United States v. Brooks,
957 F.2d 1138, 1145 (4th Cir.), cert. denied, 505 U.S. 1228 (1992).
The strength of the government's case against a co-defendant is not
a reason for severance unless there is also a strong showing of preju-
dice. Id. Frazier failed to make anything but a general allegation of
prejudice in his pre-trial severance motion. His acquittal on one count
demonstrates that he was not convicted simply because of his associa-
tion with his co-defendants. Consequently, the district court did not
abuse its discretion in denying the severance motion.

II. Denial of Mistrial

Frazier moved for a mistrial during the testimony of Martinsburg
attorney William Douglas Taylor, a co-conspirator who obtained
cocaine and crack from Brumbaugh and McNulty as well as from Fra-
zier. The Brumbaugh/McNulty indictment charged Frazier with dis-
tributing one-eighth of an ounce of cocaine in December 1992,
possessing half an ounce of cocaine with intent to distribute in
December 1992, and distributing one-eighth of an ounce of cocaine
in January 1993. The government's proof for all three counts was sup-
plied by Taylor. Frazier was convicted of two counts, but acquitted
of the third.1

Taylor became an informant and made controlled buys from Fra-
zier in the summer of 1993 which were the basis for charges against
Frazier in the Gray/Frazier indictment. At one point during Taylor's
trial testimony, he volunteered that he had made a number of con-
_________________________________________________________________

1 Taylor did not testify that Frazier possessed half an ounce of cocaine
with intent to distribute in December 1992 as charged in Count 94.

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trolled buys from Frazier. The district court denied Frazier's motion
for a mistrial and instructed the jury to disregard the statements.

Denial of a mistrial is reviewed for abuse of discretion. United
States v. Dorsey, 45 F.3d 809, 817 (4th Cir.), cert. denied, ___ U.S.
___, 63 U.S.L.W. 3907 (U.S. June 26, 1995) (No. 94-9433). To show
an abuse of discretion, the defendant must show prejudice. Id. If the
district court gives a curative instruction concerning whatever forms
the basis for the mistrial motion and the jury subsequently demon-
strates that it has followed the instruction by acquitting the defendant
on some count, the defendant cannot show prejudice. Id. (citing
United States v. West, 877 F.2d 281, 287-88 (4th Cir.), cert. denied,
493 U.S. 896 and 959 (1989), and 493 U.S. 1070 (1990)). Here, Fra-
zier was acquitted on Count 94. Moreover, Taylor's remark was not
solicited by the government. Because there was no government mis-
conduct and a curative instruction was given, we find that a mistrial
was not warranted.

III. Evidentiary Issues

A.

Mark Dabbs challenges the district court's decision not to admit
page 19 of the grand jury testimony of Alayna Dabbs, his former
wife. Alayna Dabbs testified under cross-examination that Dabbs had
delivered drugs for Brumbaugh and McNulty. Dabbs's attorney then
impeached her with her grand jury testimony, in which she had testi-
fied that she did not know for sure whether Dabbs had ever delivered
drugs. Alayna Dabbs admitted that her grand jury testimony on this
point was false and stated that she knew Mark Dabbs had delivered
drugs. Dabbs's attorney then asked that page 19 of the grand jury
transcript be admitted into evidence, but the district court denied the
motion.

The government concedes that the page of Alayna Dabbs's grand
jury testimony which Mark Dabbs sought to admit as extrinsic evi-
dence was admissible under Federal Rule of Evidence 801(d)(1)(A).
United States v. Stockton, 788 F.2d 210, 219-20 (4th Cir. 1986). How-
ever, the government contends that any error in the district court's
refusal to admit page 19 of the grand jury transcript was harmless.

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The government relies on United States v. Lashmett, 965 F.2d 179,
182 (7th Cir. 1992), in which the issue was whether a defendant is
entitled to introduce extrinsic evidence of a prior inconsistent state-
ment when the witness admits making such a statement. Lashmett
acknowledged a split in the circuits and followed those circuits which
hold that the defendant should be allowed to introduce extrinsic evi-
dence of the prior inconsistent statement because it may be the most
effective way of undermining the witness's credibility. Id. (citing
Gordon v. United States, 344 U.S. 414, 420-21 (1953)). However, in
Lashmett, the Seventh Circuit ultimately found that reversal was not
necessary because, even without the extrinsic evidence, the defendant
accomplished his objective of exposing to the jury the witness's prior
deceit. Lashmett, 965 F.2d at 182-83. In this case also, Mark Dabbs
accomplished his objective of exposing Alayna Dabbs' untruthful
grand jury testimony. Therefore, we find that the district court's
refusal to admit page 19 was harmless error.

B.

Appellants challenge on constitutional grounds the district court's
refusal to suppress information obtained when the government inter-
cepted, without a warrant, telephone conversations between Brum-
baugh and Stephen Askin, then her attorney, which took place while
Brumbaugh was using a cordless phone. Askin was called as a wit-
ness by the government, refused to answer questions which he
believed were derived from the intercepted conversations, and was
held in civil contempt. In his appeal from that order, we held that no
violation of the Fourth Amendment occurred. See In re Askin, 47 F.3d
100, 106 (4th Cir.), cert. denied, ___ U.S. ___, 64 U.S.L.W. 3316
(U.S. Oct. 30, 1995) (No. 95-444). Therefore, this issue is without
merit.

IV. Right of Confrontation

One of Brumbaugh's and McNulty's sources for cocaine was a
man from Philadelphia known to them as Ely or Eli. He testified at
trial, under the name Anderson "Eli" Dews, that he sold cocaine to
Brumbaugh and McNulty during most of 1992. He encountered both
Dabbs and Frazier at their house. In the summer of 1992, Eli bought
a 9 mm pistol from McNulty for a half-ounce of cocaine. However,

6
after the trial it was discovered that his real name was Ivan James Eli
and he had been arrested twice under that name.

At their sentencing hearings on December 1, 1994, and December
2, 1994, Brumbaugh and McNulty both argued that Eli's misrepresen-
tation of his identity destroyed his credibility and that information
derived from his testimony should not be considered in sentencing
them. McNulty's attorney stated that the confrontation issue would be
raised on appeal, but did not move for a new trial on this ground.

On appeal, Brumbaugh, McNulty, and Dabbs assert that they were
denied the right to confront "Anderson Dews" about his two prior
arrests and thereby impeach his credibility because they were
unaware of his real identity as Ivan James Eli until notified by the
government six months after trial. Appellants do not contend that the
government knew Eli's true identity during the trial and they
acknowledge that the district court did not limit cross-examination of
Dews. They claim that the government had a duty to investigate Dews
more thoroughly before trial, discover his true identity, and disclose
the information to them.2

The Confrontation Clause guarantees the defendant an opportunity
to cross-examine prosecution witnesses and protects his right to a
cross-examination which is free from excessive restrictions. Delaware
v. Fensterer, 474 U.S. 15, 18-20 (1985). The Confrontation Clause
does not function as a discovery rule; it is a trial right which protects
against improper restrictions on the questions asked by defense coun-
sel. Pennsylvania v. Ritchie, 480 U.S. 39, 51-52 (1987). It does not
require pretrial disclosure of all information which might be useful to
the defense during cross-examination. Id. at 53. Claims relating to the
discovery of the identity of witnesses or the production of exculpatory
evidence are analyzed under the Due Process Clause. Id. at 56. The
government is required "to turn over evidence in its possession which
is favorable to the accused and material to guilt or innocence." Id. at
_________________________________________________________________

2 The government asserts that the issue for appeal is the district court's
denial of Appellants' motion for a new trial based on newly discovered
evidence. However, the district court did not rule on this issue. The new
trial motions were filed before Dews' real identity was disclosed and
raised different issues.

7
57. Evidence is material if there is a reasonable probability that its
disclosure would have affected the outcome. Id. (citing United States
v. Bagley, 473 U.S. 667, 682 (1985)).

To comply with Bagley, a prosecutor "has a duty to learn of any
favorable evidence known to the others acting on the government's
behalf in the case, including the police." Kyles v. Whitley, ___ U.S.
___, 63 USLW 4303 (U.S. Apr. 19, 1995) (No. 93-7927). Here, the
probation officer discovered Eli's real name and arrest record after the
trial. Appellants do not contend that anyone acting on the govern-
ment's behalf knew of Eli's real identity before or during the trial.
Moreover, there is no reasonable probability that pre-trial disclosure
would have brought about a different result because Eli admitted
being a drug dealer and the fact that he had two prior arrests would
have had little effect on his credibility. Therefore, this claim is with-
out merit.

V. Closing Argument

During closing argument, the government attorney identified most
of the "known individuals" described in the indictment as persons
who had testified at trial. Following their convictions on most of the
charges against them, Brumbaugh, Dabbs, and McNulty filed timely
new trial motions asserting that they had been denied due process
because the government's closing argument allowed the jury to con-
sider facts not in evidence. As a result, they argued, the government
had not proved all the elements of each charged offense. Frazier
joined in this motion, which the district court denied.

Brumbaugh, McNulty, and Dabbs contend on appeal that, by link-
ing most of the numbered "known individuals" in the indictment to
various government witnesses, the prosecutor improperly referred to
facts not in evidence. They argue that these improper remarks caused
them substantial prejudice and require a new trial. Appellants did not
object to the government's closing argument at trial; the issue was
first raised in their motions for new trial. Consequently, the issue is
reviewed for plain error. Fed. R. Crim. P. 52(b); United States v.
Mitchell, 1 F.3d 235, 239 (4th Cir. 1993). Reversal requires that the
appeals court identify an error which is plain and affects substantial

8
rights and the fairness, integrity, or public reputation of judicial pro-
ceedings. United States v. Olano, 507 U.S. 725 (1993).

The test for reversible error resulting from improper closing argu-
ment is that the prosecutor's remarks must have been improper and
must have prejudicially affected the defendant's substantial rights so
as to deprive him of fair trial. Mitchell, 1 F.3d at 240. In this case, the
prosecutor made no improper remarks during closing argument. The
government is not limited to a recitation of the facts in closing argu-
ment, but may make fair inferences from the evidence. United States
v. Francisco, 35 F.3d 116, 120 (4th Cir. 1994), cert. denied, ___ U.S.
___ 63 U.S.L.W. 3563 (U.S. Jan. 23, 1995) (No. 94-7258); United
States v. Brainard, 690 F.2d 1117, 1122 (4th Cir. 1982), cert. denied,
471 U.S. 1099 (1985). Moreover, the Fifth Circuit has held that it is
a denial of due process to name an unindicted co-conspirator in an
indictment or factual summary. See In re Smith, 656 F.2d 1101, 1107
(5th Cir. 1981); United States v. Briggs, 514 F.2d 794, 806 (5th Cir.
1975). Therefore, while there was good reason for the government not
to name the unindicted persons in the indictment, the prosecutor could
link the evidence presented by the trial witnesses with the charges
made in the various counts, and draw inferences connecting the wit-
nesses to those charges. No plain error occurred.

VI. Cumulative Error

Frazier asserts that he was denied a fair trial because of the cumula-
tive effect of the district court's errors in denying his motions for
acquittal, mistrial, and severance, and because of the errors raised by
Brumbaugh, McNulty, and Dabbs, even if this Court finds that the
alleged errors were individually harmless. In particular, he contends
that his constitutional right of confrontation was denied by Eli's testi-
mony under a false name. However, none of the claims of error have
merit and, therefore, reversal on this ground is not available. See
United States v. Rivera, 900 F.2d 1462, 1470-71 (10th Cir. 1990)
(only actual harmless errors may have cumulative effect warranting
reversal).

VII. Sufficiency of the Evidence

Frazier argues that there was insufficient evidence to convict him
of involvement in the Brumbaugh/McNulty conspiracy. The convic-

9
tion must be sustained if, viewing the evidence and inferences from
it in the light most favorable to the government, there is substantial
evidence to support it. Glasser v. United States, 315 U.S. 60, 80
(1942); 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). To prove a conspiracy, the government must show an
agreement to commit an unlawful act. United States v. Giunta, 925
F.2d 758, 764 (4th Cir. 1991).

Several witnesses testified that they saw Frazier at 508 W. Burke
Street, the house Brumbaugh and McNulty shared in Martinsburg, or
later at their house in Kearneysville. Judy Minghini testified that
Brumbaugh told her she had borrowed several thousand dollars from
Frazier to buy drugs. She also once saw Frazier talking to Brumbaugh
at 408 W. Burke Street in a room which was used as an office. Eli
saw Frazier at the Kearneysville house using cocaine.

Most telling was Taylor's testimony that in late 1991 or early 1992,
when Brumbaugh and McNulty were temporarily out of drugs,
McNulty took him to Frazier's house so that Taylor could buy
cocaine from him. Around the same time, Taylor was present when
Brumbaugh was "conducting business" with Frazier. When Brum-
baugh and McNulty stopped dealing drugs, Brumbaugh gave Taylor
her telephone list, which Taylor used to contact Frazier when he
wanted to buy cocaine. This evidence was sufficient to permit the jury
to find that Frazier agreed with Brumbaugh and McNulty to violate
the federal drug laws.

VIII. Sentencing

A.

Gray contends that his attorney was ineffective during his sentenc-
ing because he permitted Gray to stipulate to an amount of relevant
conduct which included crack although Gray did not believe he
should be held responsible for any crack for sentencing purposes. He
also asserts that his attorney was ineffective in failing to raise the
issue of sentencing entrapment or manipulation. A claim of ineffec-
tive assistance is not properly raised on direct appeal unless the record
below conclusively demonstrates that counsel did not provide effec-

10
tive representation. United States v. Williams, 977 F.2d 866, 871 (4th
Cir. 1992), cert. denied, 507 U.S. 942 (1993). Our examination of the
record discloses that Gray has not made the required showing.

B.

In 1992 and 1993, before Frazier's indictment, investigators inter-
viewed Ron Collins and Dwight Glenn, both of whom said Frazier
had employed them to travel to Philadelphia to purchase cocaine with
money he supplied. Collins reported making two trips in the summer
of 1992 to buy half an ounce of cocaine, and also buying smaller
amounts of cocaine for Frazier ten to fifteen times that summer,
apparently from a local source. Glenn said he made five trips to Phila-
delphia in 1993, buying three to five ounces of cocaine each time
until the last trip when Frazier gave him $6000 to buy a quarter of a
kilogram. Glenn did not make the last purchase, but instead kept the
money. Both Glenn and Collins pled guilty to criminal charges.

The probation officer included these amounts in the calculation of
Frazier's relevant conduct (63.7 grams of cocaine for his involvement
with Collins and 620 grams for his involvement with Glenn). Frazier
objected. At his first sentencing hearing, the government presented
the testimony of Martinsburg Police Detective Tim Catlett, who had
interviewed Glenn and Collins. In response, Frazier testified that he
knew both men only as customers at his pawn shop. The district court
continued the sentencing so that the government could call Collins
and Glenn as witnesses, as well as for additional testimony on another
issue.

At the second hearing, the court focused principally on whether
Gray's crack distributions to Taylor were foreseeable to Frazier.
Then, after reviewing Glenn's grand jury testimony,3 the district court
found by a preponderance of the evidence that the information from
_________________________________________________________________

3 After the first hearing, Frazier's attorney informed the government
that the objections to the information from Collins and Glenn would be
withdrawn. At the second sentencing hearing, new counsel representing
Frazier wished to reinstate the objections. Collins and Glenn were not
present. The government presented a copy of Glenn's grand jury testi-
mony.

11
Glenn and Collins was more reliable than Frazier's testimony. The
court adopted the cocaine amount recommended by the probation
officer.

Frazier argues (1) that Glenn's allegations lacked sufficient indicia
of reliability, (2) that the court failed to find that his conduct with
Glenn and Collins was part of the same course of conduct or common
scheme or plan as the offense of conviction, see USSG § 1B1.3(a)(2),
and (3) that the court clearly erred in implicitly finding that the Glenn
allegations were relevant conduct under USSG § 1B1.3(a)(2). None
of his contentions have merit.

Although Frazier points out small discrepancies between the state-
ments Glenn made in his grand jury testimony and in his interview
with the probation officer, Glenn's information had sufficient indicia
of reliability because it was detailed, given under oath before the
grand jury as well as to government investigators and to the probation
officer, and generally consistent each time it was given. The points of
difference were not brought out in the district court because Frazier
did not dispute the particulars of the Glenn/Collins information but
rather denied having any such dealings with either of them.

The district court's finding was adequate because the court adopted
the probation officer's recommended finding that the conduct
described by Glenn and Collins met the test for uncharged conduct
which was part of the same course of conduct or common scheme or
plan as the offense of conviction. See USSG § 1B1.3(a)(2). Such a
finding is adequate if the ruling is clear. United States v. Walker, 29
F.3d 908, 911 (4th Cir. 1994). The ruling was clear in this case. More-
over, a sentencing decision may be affirmed even when the basis for
the court's ruling is not clearly stated but the evidence supports the
finding. United States v. Cook, 76 F.3d 596, 605 (4th Cir. 1996).

Drug conspiracy and drug distributions are offenses which are
grouped under USSG § 3D1.2, and thus are covered by USSG
§ 1B1.3, although Frazier argues to the contrary. Uncharged conduct
is part of a common scheme or plan as another offense if it is con-
nected to the offense of conviction by at least one common factor,
such as a common purpose. USSG § 1B1.3(a)(2), comment. (n.9(A)).
In determining whether uncharged conduct is part of the same course

12
of conduct as another offense, the court must evaluate the similarity,
regularity, and temporal proximity of the uncharged conduct to the
offense of conviction. Cook, 76 F.3d at 605; USSG § 1B1.3, com-
ment. (n.9(B)). Frazier's dealings with Glenn and Collins, Gray,
Brumbaugh and McNulty, and Taylor all had a common purpose
(obtaining, using, and distributing illegal drugs) and occurred during
the period of the conspiracy (January 1998 to January 1994). Regular-
ity, similarity, and temporal proximity were all present. Consequently,
the district court's finding was not clearly erroneous.

C.

The district court gave Frazier a two-level adjustment under USSG
§ 3B1.1(c) based on Glenn's grand jury testimony that Frazier
directed him to travel to Philadelphia to obtain cocaine. Because his
dealings with Glenn were relevant conduct, the adjustment was not
clearly erroneous.

D.

In his written statement to the probation officer, Frazier denied
ever distributing cocaine, despite his conviction of two cocaine
charges and his guilty plea to a third count of cocaine distribution.
The district court denied him an adjustment for acceptance of respon-
sibility. USSG § 3E1.1. Frazier argues that he was penalized for exer-
cising his right to a trial. However, denial of the adjustment is not a
penalty, United States v. Frazier, 971 F.2d 1076, 1087 (4th Cir.
1992), cert. denied, 506 U.S. 1071 (1993). A defendant who insists
on a trial may obtain the adjustment only if he went to trial to pre-
serve issues unrelated to factual guilt. United States v. Holt, 79 F.3d
14, 17 (4th Cir. 1996). Frazier was not in this category and the district
court did not clearly err in denying him the adjustment.

Finding no reversible error, we affirm the convictions and sen-
tences appealed. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.

AFFIRMED

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