U.S. v. Mills

• Decision Date: 28 May 1993
• Docket Number: Nos. 92-5231,92-5287 and 92-5491,s. 92-5231
• Parties: 38 Fed. R. Evid. Serv. 1223 UNITED STATES of America, Plaintiff-Appellee, v. Brian Keith MILLS, Defendant-Appellant. (Two Cases). UNITED STATES of America, Plaintiff-Appellee, v. Benjamin Ronald SCALES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 480

995 F.2d 480

38 Fed. R. Evid. Serv. 1223

UNITED STATES of America, Plaintiff-Appellee, v. Brian Keith MILLS, Defendant-Appellant. (Two Cases).

UNITED STATES of America, Plaintiff-Appellee, v. Benjamin Ronald SCALES, Defendant-Appellant.

Nos. 92-5231, 92-5287 and 92-5491.

United States Court of Appeals, Fourth Circuit.

Argued March 4, 1993.

Decided May 28, 1993.

Anthony Wayne Harrison, Sr., Hugh Davis North, III, Harrison, North, Cooke & Landreth, Greensboro, NC, argued for plaintiff-appellant Scales.

Michael Andrew Grace, Greeson, Grace & Gatto, P.A., Winston-Salem, NC, argued (Lisa S. Costner, on brief), for plaintiff-appellant Mills.

David Bernard Smith, Asst. U.S. Attorney/Senior Litigation Counsel, Greensboro, NC, argued (Robert H. Edmunds, Jr., U.S. Atty., on brief), for plaintiff-appellee.

Before HALL, Circuit Judge, BUTZNER, Senior Circuit Judge, and POTTER, United States District Judge for the Western District of North Carolina, sitting by designation.

OPINION

POTTER, District Judge:

The Defendant-Appellant contends that the District Court erred:

1. In denying Appellant Scales' motion for judgment of acquittal on count one.

2. By refusing to provide Appellant Scales with a jury instruction concerning multiple conspiracies and the buyer-seller defense.

3. By admitting evidence of Mills' past drug transactions.

4. In denying Mills' motion to dismiss an indictment founded on testimony before the grand jury which misidentified another co-conspirator as Mills.

5. In computing Appellants' foreseeable quantities of drugs and in refusing to give them credit as minor participants.

This case results from a charge of a violation of 21 U.S.C. § 846. We affirm.

FACTS

This case arises out of a conspiracy to distribute multiple kilograms of cocaine headed by Samuel Manko, a citizen of Ghana, during the spring and summer of 1988 through early 1989.

A. Appellant Scales

Benjamin Scales first met Manko in the spring or summer of 1988 when a co-conspirator, Hayward "Mookie" Hicks, introduced the two men. Scales' first meeting with Manko was inaugurated by Scales' four ounce purchase of cocaine from Manko. Sometime after this transaction, Manko returned to his base of operation in Miami, Florida. Soon the conspiracy began to unfold when Scales summoned Manko back to North Carolina. In August of 1988, Scales called Manko in Miami inquiring when he would return to town and Manko replied he was ready to do so because he wanted to do some "business." Eventually, Scales provided Manko an escort, Jackie Suffern, who flew to Miami to deliver to Manko $5,000 of Mookie Hicks' money, and drive Manko to Raleigh, N.C. Manko and Suffern returned to Raleigh, N.C. with four kilograms of cocaine which were sold out of a hotel room which Scales rented. Scales sold nine ounces of the four kilograms brought by Manko from Miami. During the course of the conspiracy, Manko and Suffern traveled together on several occasions to purchase or deliver cocaine.

There was testimony concerning Scales' multiple purchases and sales of cocaine in quantities ranging from two to twelve ounces. There was also testimony that Manko kept cocaine at Scales' house during the course of the conspiracy.

B. Appellant Mills

Brian Mills was introduced to Manko in Raleigh during the summer of 1988 as a prize customer/distributor--someone who wanted to buy ten kilograms of cocaine weekly from Manko. Mills eventually participated in a joint purchase with Glen Marks of four kilograms of cocaine from Manko. That four kilogram quantity of cocaine was delivered to Mills and his associates in the purchase at an auto-repair shop in Reidsville, N.C.

Co-conspirator Reginald Gaddy testified he purchased cocaine from Mills prior to the period covered by the conspiracy beginning in 1985. Gene Burns, a co-conspirator, testified he bought cocaine from Mills during the summer of 1988 which includes the conspiracy period. There was also testimony that Mills assisted Marks in an eight to ten ounce sale of cocaine in Raleigh, N.C. Later in 1989, Mills sought to buy three kilograms, but actually purchased one kilogram less nine ounces, and was told by Manko, "if they needed more cocaine, they could follow him back to Florida and he could purchase any amount...." (App. 389-90). There was other testimony that Mills was either a participant in or facilitated (i.e. he carried cocaine to a co-conspirator's car after a sale) conspiracy-related drug transactions.

During trial, cross examination of DEA Agent John Ingram by Mills' counsel uncovered an odd predicament presented by the Grand Jury's indictment of Mills. Agent Ingram testified at trial for the first time that his testimony before the Grand Jury concerning Mills' involvement in the conspiracy was factually mistaken. Agent Ingram admitted at trial that he wrongly told the Grand Jury of a co-conspirator called "Brincefield" but inadvertently called him by Mills' name. Just before resting his case, Mills moved to dismiss the indictment and renewed that motion after the jury delivered its guilty verdict. The district court denied both motions.

Simply put, Agent Ingram unintentionally confused "Brincefield" with Mills in his Grand Jury testimony. Accordingly, the Grand Jury heard testimony about a man called Brian Mills who was involved in the conspiracy, but did so through an account of conduct which actually related to a man named "Brincefield." Ultimately, the Grand Jury indicted Mills on the testimony of Agent Ingram. There was no claim at trial that either the Government or Agent Ingram maliciously misled the Grand Jury.

DISCUSSION

I.

Appellant Scales' first complaint is that the trial court wrongly denied his Fed.R.Crim.P. 29 motion for judgment of acquittal. We review judgments of acquittal by asking, "whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The essential elements of the instant conspiracy are 1) an agreement between two or more persons, tacit or express, to undertake to violate 21 U.S.C. § 841; 2) the accused willfully joined the conspiracy; 3) with intent to accomplish the criminal purpose of the conspiracy. United States v. Clark, 928 F.2d 639, 641-642 (4th Cir.1991); United States v. Bell, 954 F.2d 232, 237-238 (4th Cir.1992).

Appellant Scales is concerned that his conviction presents another woeful instance of the "increasing abuses of the conspiracy concept occasioned by ever growing governmental efforts in the 'war against drugs.' " Brief for Appellant at 12. While it is true that this Court has expressed concerns over abuses of the "elastic" law of conspiracy to ensnare the innocent, we have never held that conspiracy prosecutions are inherently or presumptively suspect and find no abuse in the instant case. Id. at 237. Our concern with conspiracy law was well put in Bell when we voiced our "significant reluctance to apply conspiracy [law] to individuals whose most heinous ... crime is choosing the wrong friends." Id. Simply said, we are not concerned about conspiracy convictions within the law. We are only troubled by conspiracy convictions which reach beyond the rightful bounds of the criminal prohibitions of our law. It is unlawful to prosecute someone for having unseemly associates. It is not improper to hold someone liable for violating the conspiracy laws. A drug conspiracy conviction simply is not presumed suspect by virtue of its being drug or conspiracy related.

We think the district court did not err in denying Appellant's motion for judgment of acquittal. We must review such denials by drawing "all reasonable inferences in favor of the government." United States v. Laughman, 618 F.2d 1067, 1077 (4th Cir.1980). In the light most favorable to the government, it appears to us that Scales did in fact agree with Manko to peddle cocaine when he purchased cocaine from Manko, arranged to have Manko brought to North Carolina with cocaine and stored Manko's cocaine in his house. We further believe Scales joined this conspiracy willfully when he contacted Manko personally to inquire when he would return to North Carolina and then arranged for him to come to Raleigh. Finally, we find the evidence against Scales adequately supported a finding that he intended to further the criminal objectives of the alleged conspiracy since it plainly indicates he understood Manko's "business" entailed cocaine distribution. We believe Scales did not merely choose the wrong friends, he chose to enter the wrong business with the wrong business partners.

Scales urges us to overturn his conviction since he was charged with a multiple kilogram conspiracy and yet the government failed to prove he even so much as "discussed ... the existence of the 'multiple kilogram' conspiracy with which he was charged...." Brief for Appellant at 17 (emphasis in original). Apparently, Scales would have us hold that before one can be held to answer for a conspiracy charge which alleges an agreement to distribute multiple kilograms of cocaine, there must be evidence that the conspirators agreed upon the quantity of drugs that they intended to jointly sell. That is, there must not be one conspirator who intends to sell five kilograms and one who only intends to sell one kilogram. They must both intend to sell five kilograms or one but not both. We decline to make such a fanciful holding.

Instead, we reiterate that the focus of a conspiracy charge is the agreement to violate the law, not whether the conspirators have worked out the details of their confederated criminal undertakings. To violate 21 U.S.C. § 846, there need only be proof the conspirators agreed to jointly undertake prohibited conduct, not to do so with a specific drug amount in mind. "The gist or gravamen of the crime of conspiracy is...