UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 97-4116

JAMES CALVIN SEGERS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 97-4131
VINCENT GERARD MCCOLLOUGH, a/k/a
Robert Miller,
Defendant-Appellant.

Appeals from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
William L. Osteen, Sr., District Judge.
(CR-96-72)

Submitted: July 7, 1998

Decided: July 20, 1998

Before ERVIN and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina; Daniel Smith Johnson, Winston-Salem, North Caro-
lina, for Appellants. Walter C. Holton, Jr., United States Attorney,
Michael F. Joseph, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Vincent G. McCollough and James C. Segers appeal from their
convictions for conspiracy to possess with intent to distribute cocaine
hydrochloride, in violation of 21 U.S.C. § 846 (1994) and attempt to
possess with intent to distribute cocaine hydrochloride, in violation of
21 U.S.C. § 841 (1994). On appeal, they claim that: (1) the evidence
was insufficient to support their convictions for conspiracy to possess
with intent to distribute because the Government did not prove an
agreement between them; (2) the evidence was insufficient to support
their convictions for attempt to possess with intent to distribute
because the Government did not prove knowledge; (3) the district
court engaged in a pattern of prejudicial conduct; (4) the cumulative
effect of the district court's evidentiary rulings precluded Segers from
presenting his defense; and (5) Segers was deprived of his right to a
speedy trial. For the following reasons, we affirm.

On direct appeal of a criminal conviction, a "verdict must be sus-
tained if there is substantial evidence, taking the view most favorable
to the Government, to support it." Glasser v. United States, 315 U.S.
60, 80 (1942). The evidence showed that a United States Customs
Inspector in San Juan, Puerto Rico, was inspecting packages that orig-
inated in the United States Virgin Islands and detected a package con-

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taining cocaine hydrochloride that was addressed to"Robert Miller,
112 N. Jackson Ave., Winston-Salem, N.C." The Postal Inspector in
Charlotte, North Carolina, Robert Lazarus, was notified of the inter-
ception of the package. Lazarus received the package and met with
several law enforcement agents. One of the agents obtained an antici-
patory search warrant for the residence of 112 North Jackson Avenue.
The agents decided to remove the cocaine, make a controlled deliv-
ery, and then execute the search warrant. Lazarus obtained a postal
truck and dressed as a postal worker to make the delivery. When Laz-
arus attempted to deliver the package to 112 North Jackson Avenue,
he was met by a woman at the front door. Lazarus stated that he "had
a package for Robert Miller." The woman indicated that a "Robert
Miller" did not live at that address.

Lazarus returned to the postal truck and began to leave the area
when he realized that Segers was attempting to stop the truck. Segers
asked if Lazarus had a package and Lazarus responded in the affirma-
tive. When Lazarus informed Segers that the package was addressed
to "Robert Miller" and Miller did not live at the residence, Segers told
Lazarus to wait while Segers went to the residence. Segers went to the
front porch and met with McCollough. Lazarus then walked to the
front door and asked McCollough if he was "Robert Miller." McCol-
lough said "yeah." Lazarus instructed McCollough to sign his name
on the delivery receipt and McCollough signed the name "Robert Mil-
ler." McCollough also printed that name right below the handwriting.
Lazarus gave McCollough the package and watched McCollough
carry the package into the residence. Lazarus then drove the mail
truck around the block, donned a bullet proof vest, and returned to the
residence to execute the search warrant. As Lazarus and the other
officers returned to the residence, they saw Segers leaving.

When the officers entered the residence, McCollough was not in
the house. Approximately one to two minutes after the package was
delivered, other officers observed McCollough exit the rear of the
house carrying a black bag with the package inside and walk towards
a gas station. McCollough was stopped and arrested.

McCollough admitted to an agent from the Drug Enforcement
Administration that he was "supposed to be paid $250 to take a pack-
age to the Wilco [station], to meet a guy from South Carolina, and [he

                    3
was] supposed to give the package to him." McCollough made a simi-
lar admission to a United States Customs agent. McCollough stated
that "he had planned to deliver the package to a man named William,
who he had recently met from South Carolina." He further stated that
he was to deliver the package, which he thought contained jewelry,
to a man at a nearby BP gasoline station. When asked why somebody
would pay him to receive jewelry, McCollough replied that he knew
he was doing something illegal.

When questioned by officers, Segers stated that the kilogram of
cocaine belonged to a black male from the Virgin Islands named
"Robbie." Segers stated that he met Robbie two to three weeks earlier.
He said that Robbie had asked him to cook up some powder cocaine
into crack cocaine. Segers further stated that on this occasion Robbie
asked him if he knew a location where they could mail some cocaine
from the Virgin Islands. Segers said that he introduced McCollough
to Robbie and an agreement was made that the cocaine was going to
be mailed to 112 North Jackson Avenue. In a subsequent interview,
Segers stated that McCollough was to receive either $1000, or an
ounce of cocaine, for receiving the package of cocaine. Segers was
going to make the payment. Segers stated that McCollough was to
take the package to one of the service stations and"meet up with Rob-
bie after the delivery." Segers knew that Robbie had mailed other
packages to the Winston-Salem area.

McCollough testified that he lived with a woman at 112 North
Jackson. He also rented rooms to other individuals. Segers introduced
him to a man named "E" or "William." William informed McCol-
lough that he wanted to rent a room but he did not have money. So,
William asked McCollough to receive some jewelry in the mail in
exchange for money. McCollough later testified that he realized that
William and Robbie were the same person when he saw the name
"Robert" on the package that was delivered to his residence.

On appeal, Appellants contend that the evidence was insufficient
to support their convictions. Appellants first contend that there was
insufficient evidence to support their conviction for conspiring to pos-
sess with the intent to distribute cocaine because the Government did
not prove the existence of an agreement between them. A conspiracy
to possess cocaine with intent to distribute is established when: "(1)

                    4
an agreement to possess cocaine with intent to distribute existed
between two or more persons; (2) the defendant knew of the conspir-
acy; and (3) the defendant knowingly and voluntarily became a part
of this conspiracy." United States v. Burgos , 94 F.3d 849, 857-58 (4th
Cir. 1996), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3586 (U.S. Feb.
24, 1997) (No. 96-6868). Because a conspiracy is"clandestine and
covert" in nature, a conspiracy is generally proved by "circumstantial
evidence and the context in which the circumstantial evidence is
adduced." Id. Circumstantial evidence tending to prove a conspiracy
may consist of a defendant's "relationship with other members of the
conspiracy, the length of this association, his attitude, conduct, and
the nature of the conspiracy." United States v. Collazo, 732 F.2d
1200, 1205 (4th Cir. 1984). Further, a variety of conduct, apart from
selling drugs, can constitute participation in a conspiracy sufficient to
support a conviction. See Burgos, 94 F.3d at 859. The focus of appel-
late review of the sufficiency of evidence to support a conspiracy con-
viction is on the complete picture, viewed in context and in the light
most favorable to the Government, that all of the evidence portrayed.
See id. at 863.

The testimony from the law enforcement agents and Appellants
themselves was sufficient to support Appellants' conspiracy convic-
tions. Segers admitted to officers that he introduced Robbie to
McCollough so that Robbie could ship cocaine to McCollough's resi-
dence. Segers stopped the postal truck from leaving McCollough's
residence so that the package could be delivered. McCollough stated
that he agreed to receive a package and received the package by sign-
ing a false name. Although the evidence included uncorroborated tes-
timony and contradictory testimony, it is well established that the
jury, not the appellate court, weighs the credibility of the evidence
and resolves any conflicts in the evidence presented, and if the evi-
dence supports different, reasonable interpretations, the jury decides
which interpretation to believe. See id. at 862. Likewise, determina-
tions of credibility are within the sole province of the jury and are not
susceptible to judicial review. See id. at 863.

Appellants also contend that there was insufficient evidence to sup-
port their conviction for attempting to possess cocaine with the intent
to distribute because the Government did not prove that they knew the
delivered package contained cocaine. The offense of possession with

                     5
intent to distribute requires the Government to prove that the defen-
dant knowingly possessed a controlled substance with the intent to
distribute it. See 21 U.S.C. § 841(a) (1994); United States v. Samad,
754 F.2d 1091, 1096 (4th Cir. 1984). To prove an attempt the Govern-
ment must establish culpable intent to commit the crime charged and
a substantial step towards the completion of the crime that strongly
corroborates that intent. See United States v. Neal, 78 F.3d 901, 906
(4th Cir. 1996), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3260 (U.S.
Oct. 7, 1996) (No. 95-9410). To prove intent in this case, the Govern-
ment had to show that the Appellants knew that the delivered package
contained cocaine. See Samad, 754 F.2d at 1096. Segers admitted to
officers that he knew of the plan to send cocaine to McCollough's res-
idence. Also, McCollough signed the name of "Robert Miller," lied
in stating that a "Robert Miller" lived at his residence, and immedi-
ately left his residence after he received the package. Furthermore,
"[t]he same evidence establishing a defendant's participation in a con-
spiracy may support a conclusion that a defendant participated in the
principal's unlawful intent to possess and distribute drugs." Burgos,
94 F.3d at 873. Therefore, we find that sufficient evidence supports
the Appellants' convictions.

Appellants next claim that the district court engaged in a pattern of
prejudicial conduct which conveyed an impression of partiality
towards and advocacy of the Government's case which deprived the
Appellants of a fair trial. We review the district court's conduct under
an abuse of discretion standard to determine whether the Appellants
were deprived of a fair trial. See United States v. Castner, 50 F.3d
1267, 1272 (4th Cir. 1995). The district court has the duty to conduct
a jury trial "in a general atmosphere of impartiality." United States v.
Cassiagnol, 420 F.2d 868, 878 (4th Cir. 1970). Also, a district court
must not create the sense of partiality by continually intervening on
the side of one of the parties or undermine the functioning of counsel
through repeated interruption of the examination of witnesses. See
Castner, 50 F.3d at 1272.

Appellants contend, for example, that the district court created an
appearance of partiality by failing to make sua sponte objections
against the Government, question Government witnesses, or admon-
ish the prosecution team. However, Appellants do not specify the rea-
sons why the court should have taken these actions. The Appellants
further contend that the court, on its own initiative, inquired whether

                    6
the Government wanted limiting instructions regarding questions
posed concerning the search warrant testified about at trial. The
search warrant affidavit indicated the wrong date for the search. With
the Government's approval, the court instructed the jury that the
validity of the search warrant was not at issue, so they need not be
concerned about the validity or invalidity of the search warrant. The
court further instructed that the inconsistency between the date in the
affidavit and the officer's testimony could be considered with regard
to the witness's credibility. We find no error in the district court's
inquiry and subsequent instruction because the district court has a
duty to ensure "`that the facts are properly developed and that their
bearing upon the question at issue are clearly understood by the
jury.'" United States v. Seeright, 978 F.2d 842, 847 (4th Cir. 1992)
(quoting Simon v. United States, 123 F.2d 80, 83 (4th Cir. 1941)). The
Appellants also complain that the court interceded during an officer's
testimony to emphasize his testimony that Segers initially denied his
presence at 112 North Jackson Avenue during the time of the con-
trolled delivery. The Appellants further contend that it was improper
for the court to require the repetition of testimony establishing
Segers's presence in McCollough's residence after the controlled
delivery. The record reveals that the court questioned the officer
about his interrogation of Segers so that his testimony would be more
clear. Likewise, because McCollough's testimony was confusing and
difficult to follow, the court asked him questions to clarify his testi-
mony regarding Segers's presence at his residence on the day of the
controlled delivery. The court questioned witnesses on several occa-
sions when the elicited testimony was confusing. The court had a duty
to "`exercise reasonable control over' the interrogation of witnesses
and the presentation of evidence in order to ensure the effective deter-
mination of the truth [and] to avoid needless waste of time in the pre-
sentation of a case." Castner, 50 F.3d at 1272 (quoting Fed. R. Evid.
611(a)). Also, a district court may directly interrogate witnesses under
Fed. R. Evid. 614(b). We find no abuse of discretion in the district
court's actions.

Segers next argues that the cumulative effect of the district court's
evidentiary rulings precluded him from presenting his defense and
deprived him of a fair trial. A district court has broad discretion in rul-
ing on the relevance and admissibility of evidence and the reviewing
court will not disturb those rulings absent an abuse of discretion. See

                     7
United States v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995). Segers
complains of several evidentiary rulings which he contends had the
net effect of preventing him from educating the jury about his
defense. Segers's defense was that he was attempting to help Antonio
Bryant, his "adopted nephew," who had become involved in some
legal problems. Segers claims that he was acting under the belief that
he could get Bryant a bond reduction or possibly stave off Bryant's
indictment by "set[ting] Robbie up." The record reveals that Segers
was allowed to present his defense theory. Segers testified about call-
ing law enforcement both before and after the controlled delivery,
although he was not allowed to testify about the content of some of
those conversations. The district court excluded testimony that tended
to imply that Segers was acting with law enforcement to facilitate the
controlled delivery because Segers had previously testified that he did
not know that a package containing cocaine was going to be delivered
on the date of the controlled delivery and he did not have anything
to do with the delivery of it. The court also excluded evidence of what
unidentified officers allegedly told him prior to the delivery because
it was hearsay evidence. Therefore, we do not find that the district
court abused its discretion in making its evidentiary rulings.

Lastly, Segers claims that he was denied a speedy trial. Because
Segers never addressed this issue in the district court, we review only
for plain error. See Castner, 50 F.3d at 1277. A defendant shall be
tried within seventy days from the filing date of the indictment or
from the date he has appeared before a judicial officer, whichever
date occurs last. See 18 U.S.C. § 3161(c)(1) (1994). Excluded from
this time is a "reasonable period of delay when the defendant is joined
for trial with a codefendant as to whom the time for trial has not run."
18 U.S.C. § 3161(h)(7) (1994). Also excluded are time periods for
medical treatment of any defendant. See 18 U.S.C. § 3161(h)(i)(A)
(1994). Because Segers was tried within seventy days of arraignment
for his second superseding indictment, there was no error.

Accordingly, we affirm Appellants' convictions. We deny Segers's
motion to file a supplemental appendix and a pro se supplemental
brief. 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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