UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4681
HUBERT RAMSEY, a/k/a J. R. Ramsey,
a/k/a J. R.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, Chief District Judge.
(CR-95-5-V)
Submitted: June 9, 1998
Decided: July 24, 1998
Before MURNAGHAN, WILKINS, and MICHAEL,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
William Arthur Webb, Federal Public Defender, Gordon Widenhouse,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Mark T. Calloway, United States Attorney, H. Thomas
Church, Assistant United States Attorney, Charlotte, North Carolina,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Hubert Ramsey was found guilty by a jury of conspiracy to possess
with intent to distribute cocaine and cocaine base. Ramsey timely
appeals raising three issues: (1) the district court abused its discretion
by denying his motion for a continuance; (2) the district court abused
its discretion by admitting certain evidence; and (3) the district court
clearly erred by finding that Ramsey held a managerial/supervisory
role in the conspiracy under U.S. Sentencing Guidelines Manual
("USSG") § 3B1.1 (1995). For the reasons that follow, we affirm.
Regarding the first issue, Ramsey was indicted by a grand jury for
conspiracy to possess with intent to distribute cocaine and cocaine
base on February 16, 1996. The indictment alleged the offense
occurred between April 1995 and February 1996. On May 8, 1996,
the grand jury returned a superseding indictment identifying the same
persons but altering the names of the co-defendants. On August 12,
1996, the grand jury returned a second superseding indictment that
identified the conspiracy as taking place from April 1995 to March 7,
1996. On August 21, 1996, the day of the trial, the district court
denied Ramsey's motion to continue the trial. Ramsey's attorney
made the motion on the grounds that the second superseding indict-
ment, filed nine days prior to trial, had unfairly extended the endpoint
for the alleged conspiracy from February 1996 to March 7, 1996, and
therefore she was not prepared to defend Ramsey for the additional
time period.
We do not find that the district court abused its broad discretion by
denying the motion to continue. See United States v. Bakker, 925 F.2d
728, 735 (4th Cir. 1991). In response to the trial judge's questioning,
Ramsey's counsel admitted that the extension of the time period, as
alleged in the second superseding indictment, merely incorporated the
facts surrounding Ramsey's arrest and did not surprise counsel with
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any new or additional evidence for which she was not already pre-
pared.* Under these circumstances we deny Ramsey relief on this
issue. See United States v. LaRouche, 896 F.2d 815, 823 (4th Cir.
1990) ("In order to prove an abridgment of the sixth amendment right
to effective assistance of counsel based on an allegedly wrongful
denial of a continuance, a defendant must first demonstrate that the
district court `abused its discretion' in denying the motion.") (quoting
Morris v. Slappy, 461 U.S. 1, 11-12 (1983)). Abuse of discretion has
been defined in such circumstances as "an unreasoning and arbitrary
insistence upon expeditiousness in the face of a justifiable request for
a delay." Id.
Next, Ramsey alleges that the district court erred in admitting into
evidence letters authored by him and sent to co-defendant Tiffany
Sands, while both were held in pretrial detention. Ramsey argues that
the probative value of the letters was far outweighed by the danger
of unfair prejudice in violation of Fed. R. Evid. 403.
We review the district court's evidentiary rulings for an abuse of
discretion. See Old Chief v. United States, 519 U.S. 172, , 117 S. Ct.
644, 647 (1997). Although relevant, evidence may nevertheless be
excluded if its "probative value is substantially outweighed by the
danger of unfair prejudice." Fed. R. Evid. 403; see also Old Chief,
519 U.S. at ___, 117 S. Ct. at 650 (noting that the "term `unfair preju-
dice' . . . speaks to the capacity of some concededly relevant evidence
to lure the factfinder into declaring guilt on a ground different from
proof specific to the offense charged"). In the context of Rule 403,
unfair prejudice "means an undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emotional
one." Old Chief, 519 U.S. at ___, 117 S. Ct. at 650.
The portions of the letters read to the jury reveal that Ramsey and
Sands together did conspire to distribute cocaine. Further, the letters
detailed Ramsey's plan to falsely accuse another co-defendant of
framing them and to pin all criminal conduct on that co-defendant--
in the hope of concealing their own criminal activity. This evidence,
although cumulative in part, cast light on Ramsey's guilt based upon
his attempts to cover-up his criminal activity. Ramsey has failed to
_________________________________________________________________
*See Joint Appendix ("J.A.") at 59-61.
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show that the letters lured the jury "into declaring guilt on a ground
different from proof specific to the offense charged." Id. As a result,
we hold that the district court acted within its discretion in admitting
the challenged letters.
Finally, Ramsey argues that he should not have received an
enhancement for being an organizer or leader in the conspiracy under
USSG § 3B1.1(c). The determination that a defendant is an organizer
or leader in an offense essentially is a factual question reviewable for
clear error. See United States v. Harriott, 976 F.2d 198, 202 (4th Cir.
1992). Although the finding must be articulated and supported by evi-
dence, see id., the court need only address relevant factors. See United
States v. Harris, 39 F.3d 1262, 1270-71 (4th Cir. 1994). An enhance-
ment under § 3B1.1 is appropriate if the defendant was "the organizer
or leader, manager, or supervisor of one or more other participants."
USSG § 3B1.1, comment. (n.3). Enhancements for a defendant's
leadership role in a conspiracy have been applied in recruitment and
control situations, such as where the defendant recruited another indi-
vidual to accompany him on a drug purchasing trip or exercised con-
trol over co-conspirators in the distribution of drugs. See United
States v. Kincaid, 964 F.2d 325, 329 (4th Cir. 1992); United States v.
Smith, 914 F.2d 565, 569-70 (4th Cir. 1990).
Sands testified that Ramsey first recruited her into transporting
drugs and that he had the overseas source for the cocaine which she
would smuggle into the United States. Further, Ramsey decided when
and how much cocaine was brought into North Carolina. Sands' testi-
mony was corroborated by Isaiah Mercer who testified that he would
set up cocaine purchase amounts and times with Ramsey and then
Sands would deliver the cocaine to him in North Carolina. After hear-
ing argument from Ramsey and the Government, the court found a
preponderance of the evidence supported the calculations as presented
in the presentence report and specifically adopted the factual findings
contained in the presentence report. See United States v. Morgan, 942
F.2d 243, 245 (4th Cir. 1991) (holding that the required findings
under Fed. R. Crim. P. 32(c)(3)(D) may be made by the district
court's separate recitation of its finding as to each controverted matter
or by the court's express adoption of the recommended findings con-
tained in the presentence report). Accordingly, we do not find the dis-
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trict court clearly erred in finding that Ramsey supervised Sands
under USSG § 3B1.1(c). See Harriott, 976 F.2d at 202.
Thus, we affirm Ramsey's conviction and sentence. We dispense
with oral argument as the factual 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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