U.S. v. Durant

• Decision Date: 15 April 1994
• Docket Number: Nos. 93-5202,93-5223,93-5203,s. 93-5202
• Citation: 35 F.3d 557
• Parties: NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Damon DURANT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Patrick Troy WYNN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Nakomis Cherice HALIBURTON, Defendant-Appellant. . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 557

35 F.3d 557

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Damon DURANT, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Patrick Troy WYNN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Nakomis Cherice HALIBURTON, Defendant-Appellant.

Nos. 93-5202, 93-5203, 93-5223.

United States Court of Appeals, Fourth Circuit.

Argued: April 15, 1994.

Decided: Sept. 2, 1994.

Appeals from the United States District Court for the Western District of Virginia, at Roanoke. James H. Michael, Jr., District Judge. (CR-92-55)

ARGUED: Deborah C. Wyatt, Charlottesville, VA, for appellant Wynn; Denise Yvette Lunsford, Michie, Hamlett, Lowry, Rasmussen & Tweel, P.C., Charlottesville, VA, for appellant Durant;

J. Lloyd Snook, III, Snook & Haughey, P.C., Charlottesville, VA, for appellant Haliburton.

Ruth E. Plagenhoef, Asst. U.S. Atty., Roanoke, VA, for appellee.

ON BRIEF: Robert P. Crouch, Jr., U.S. Atty., Roanoke, VA, for appellee.

W.D.Va.

AFFIRMED.

Before LUTTIG and WILLIAMS, Circuit Judges, and PAYNE, United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

PER CURIAM:

Damon Durant, Patrick Troy Wynn, and Nakomis Cherice Haliburton were convicted of conspiracies in violation of 21 U.S.C. Sec. 846 and 18 U.S.C. Sec. 371:(i) knowingly and intentionally to distribute and attempt to distribute crack cocaine in violation of 21 U.S.C. Sec. 841(a); (ii) knowingly and intentionally to possess crack cocaine with the intent to distribute in violation of 21 U.S.C. Sec. 841(a); and (iii) to travel in interstate commerce to facilitate an unlawful activity in violation of 18 U.S.C. Sec. 1952(a)(3). They also were convicted of the substantive offenses of: (i) aiding and abetting Charmaine Graves to travel in interstate commerce with the intent to promote, manage, establish and carry on an unlawful activity involving a controlled substance, in violation of 18 U.S.C. Secs. 2 and 1952; and (ii) attempting to possess with intent to distribute cocaine base in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Sec. 841(a)(1).

All three appellants claim that one of the jury instructions amounted to a "directed verdict of guilt" because the district court instructed that certain illegal acts "were committed" by one or more of the defendants. The appellants also argue that the instructions were fatally confusing. Durant and Wynn challenge the sufficiency of the evidence to support their convictions. Haliburton, who has not challenged the sufficiency of the evidence, argues that the district court erred in determining the amount of controlled substance to be used in selecting the base offense level which was used to calculate the guideline sentence range. For the reasons set forth below, we affirm all three convictions and the sentence imposed on Haliburton.

BACKGROUND

The conspiracy and substantive charges which are the subject of this appeal arise out of a single shipment of 110 grams of crack from New York to Charlottesville so that it could be distributed in western Virginia. Considering the nature of the issues presented on appeal, it is necessary to recount the evidence presented at trial.

Charmaine Graves testified that, on March 4, 1992, in New York City, Durant asked her to deliver crack to Charlottesville where Durant and Wynn would meet her. Graves agreed to transport the crack, and shortly thereafter she, Durant and Wynn drove "downtown" together to "pick it up." Wynn remained in the car, while Durant and Graves went into an apartment building where Durant delivered the shipment to Graves. Following Durant's instructions, Graves travelled by taxi to meet Wynn and Durant at the apartment occupied by Durant's mother. There, Durant, in the presence of Wynn, directed Graves to take the crack to the Old Salem Apartments in Charlottesville. Wynn wrote that address on a piece of paper and gave it to Graves. The apartment was Haliburton's residence and the telephone number was hers. For her services, Graves testified that Durant agreed to pay her $400. ¹

Afterwards, Wynn and Durant drove Graves to the bus station, where Durant gave her money to purchase a bus ticket and for taxi fare upon arrival in Charlottesville. Graves, travelling on a one-way ticket from New York to Charlottesville, left at 6:00 p.m., changed buses in Washington, D.C., fell asleep, and awoke at the bus station in Wytheville, Virginia, which is far south of Charlottesville. Almost immediately thereafter, Graves became embroiled in a drug interdiction operation which was unrelated to the organization on whose behalf she was then acting. ² As a result of that operation, the authorities seized the suitcase containing the crack which was the subject of Graves' mission. They subsequently arrested Graves who admitted the ownership of the suitcase and explained why she was in possession of its unlawful contents, 110 grams of crack. ³

Armed with this knowledge and with the address and telephone number which Wynn had given to Graves, the agents, with the assistance of Graves, arranged for a controlled delivery to Haliburton's apartment of white chocolate altered to look like crack. The agents drove Graves to Charlottesville where she telephoned the number given her in New York by Durant and Wynn. Receiving no answer, Graves took a taxi to Haliburton's apartment. Finding no one there, Graves, acting on police instructions, left a note asking that someone collect her from the bus station.

Haliburton arrived at the bus station not long thereafter. She asked Graves: "what took you so long?" and reported that Durant, who had arrived early that morning and was waiting at Haliburton's apartment, had expressed concern about the unexplained delay in Graves' arrival. As Haliburton drove back to the apartment, she regularly checked the rear view mirror and made frequent turns because of "something that happened earlier." Upon arrival, Haliburton told Graves to leave the crack in the car, because she did not want that "stuff in her house." Graves acceded to this request and she and Haliburton entered the apartment where they were met by Durant, Wynn and a man later identified as William Reid.

After questioning Graves about the drug interdiction in Wytheville, Wynn and Durant went with Graves to retrieve the crack from the trunk of Haliburton's car. Graves testified that she thought she handed the bag of crack to Wynn, but that she never saw either Wynn or Durant open the bag. Graves then returned to the house.

Shortly thereafter, while Durant and Wynn were standing near Haliburton's car, the police arrived. The armed officers left the unmarked police vehicle and, with weapons drawn, they approached Durant and Wynn whereupon, according to Durant, Wynn yelled: "Look out, the man has a gun," and fled ⁴ to a nearby field and wooded area. He eluded arrest for about 45 minutes. The officer who was chasing Wynn returned the next day to the location where he had last seen Wynn and found the paper bag containing the white chocolate.

The challenges to the sufficiency of the evidence will be measured against this evidence on which the jury returned verdicts of guilty against all defendants on all counts.

In resolving the sentencing issues raised by Haliburton, we consider also the evidence presented during the sentencing proceedings. There Haliburton testified that, although she was aware that a woman was coming to Charlottesville to see Durant, she did not know that the woman was Graves. Thus, according to Haliburton, her encounter with Graves at the Charlottesville bus station was fortuitous. However, Haliburton acknowledged that she recognized Graves and concluded that she was the unidentified woman whose arrival was awaited by Durant and Wynn. Haliburton also testified that she knew Durant "must be" a drug dealer, but she claimed never to have seen him with crack and to have lacked knowledge of the amounts in which he dealt.

At sentencing, the government called Detective Campbell, ⁵ who testified that, on the night Haliburton was arrested, she admitted knowing that Durant and the others were dealing crack; that Durant's supply source was a Columbian; and that Durant previously had used Graves as a mule. Haliburton also told Campbell that she had tried to avoid the police when she and Graves were en route to the apartment from the bus station. Haliburton also admitted to Campbell that Durant and Wynn were expecting Graves to deliver crack to Charlottesville; that Wynn was planning to distribute some of it in Staunton; and that, when Graves was late in arriving on March 5, Durant and Wynn expressed concern that Graves had taken the crack to her boyfriend instead.

Each defendant was held responsible for the entire amount of crack (110 grams) which had been found in the luggage carried by Graves and seized in Wytheville and each defendant was found to be subject to the ten year mandatory minimum sentence required by 21 U.S.C. Sec. 841(b)(1)(A)(iii). Wynn and Durant were sentenced to 174 and 144 months in prison, respectively. Haliburton was sentenced to 135 months of confinement. This appeal followed.

DISCUSSION

A. The Jury Instructions

All defendants complain that the following passage from the instructions to the jury amounted to a direct verdict:

Now in furtherance of this conspiracy and to effect and accomplish the objects of the conspiracy, one or more of the conspirators committed the following overt acts. a.) On or about the 5th of March, 1992, Charmaine Graves traveled from the State of New York to the Commonwealth of Virginia, possessing 110 grams of crack cocaine and intending to deliver it to Damon Durant and Patrick Wynn. .......