UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 94-5540

DAVID FITZGERALD LIGHTNER,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 94-5541
BRODERICK EDWARD GRAVES, a/k/a
Broad,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CR-93-133-P)

Submitted: April 28, 1995

Decided: June 5, 1996

Before WIDENER, WILKINS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Norman Butler, LAW OFFICES OF HAROLD BENDER, Charlotte,
North Carolina; Randolph Marshall Lee, Charlotte, North Carolina,
for Appellants. Mark T. Calloway, United States Attorney, Gretchen
C.F. Shappert, 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Unpublished opinions are not binding precedent in this circuit.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:

Appellants, David Lightner and Broderick Graves, appeal from
their convictions on charges relating to cocaine trafficking. Lightner
and Graves were convicted of one count of conspiracy to possess with
intent to distribute cocaine base, 21 U.S.C. § 846 (1988). Lightner
was also convicted of one count of possession with intent to distribute
cocaine base, 21 U.S.C. § 841(a)(1) (1988). Finding no error, we
affirm.

I

This prosecution resulted from an investigation conducted by a nar-
cotics interdiction task force operating out of the Charlotte Douglas
International Airport. Agents stopped, questioned, and eventually
searched Kristopher Gordon after he deplaned a flight from Newark,
New Jersey. Gordon possessed approximately one kilogram of
cocaine base. Gordon agreed to cooperate with the agents, and he
stated that he was supposed to deliver the cocaine base to Broderick
Graves. At the agents' behest, Gordon paged Graves from the airport.
Graves responded to the call and told Gordon that he would send "his
girl" to pick up Gordon. Graves then called back and stated that he
was going to send "his boy" instead. The agents escorted Gordon back

                    2
into the terminal and followed him while they waited for someone to
approach. Eventually Lightner approached Gordon and motioned for
Gordon to follow him. As Gordon and Lightner approached an escala-
tor, Lightner noticed the agents and stated, "man, this is the police."
Lightner was subsequently arrested.

Further investigation revealed that Gordon had met Graves on a
previous trip to Charlotte. Gordon had driven to Charlotte with his
friend Kenny Bachelor, who sold drugs in New Jersey. While in
Charlotte, Bachelor had a conversation with a friend, Kim Flem-
mings, about his drug dealing in New Jersey. Flemmings mentioned
to Bachelor that she knew some connections in Charlotte and that she
could introduce Bachelor to Graves, who also dealt drugs.

Gordon and Bachelor were subsequently introduced to Graves, and
over the next ninety days Gordon and Bachelor made numerous trips
to Charlotte and began delivering large amounts of cocaine and
cocaine base to Graves. Bachelor's girlfriend also delivered cocaine
base to Graves on one occasion. Bachelor and Gordon both testified
that Graves supplied cocaine to Lightner. Phone records demonstrated
numerous telephone calls between Gordon and Bachelor in Newark
and residences associated with Graves and Lightner in Charlotte.

Graves and Lightner contend on appeal that the district court erred
in denying Lightner's motion for a mistrial, in denying Lightner's
motion to suppress a statement made by Lightner upon arrest, and in
enhancing Graves's sentence four levels because of his role in the
conspiracy. Graves filed a pro se supplemental brief raising several
contentions not addressed by counsel.

II

Lightner contends that the district court erred in failing to grant his
motion for a mistrial. Lightner's counsel bases this argument on his
belief that two of the Government's witnesses violated a sequestration
order by discussing their testimony during the trial. We reject this
argument because the record clearly demonstrates that no violation of
the sequestration order occurred.1 Therefore, the district court did not
_________________________________________________________________
1 On cross examination, Agent Taylor appeared to testify that she had
discussed what she remembered about the arrest with Agent Beam that

                    3
abuse its discretion in denying the motion. See United States v.
Alonzo, 689 F.2d 1202, 1204 (4th Cir. 1982).

III

Lightner next claims that the district court erred in denying his
motion to suppress a statement made by Lightner to Officer Wither-
spoon shortly after the arrest. Officer Witherspoon testified that after
he arrested Lightner he escorted Lightner back into the airport office
and Lightner stated that he had just gotten out of prison and that he
_________________________________________________________________
morning after Agent Beam had testified. On redirect and recross, how-
ever, it became clear that Agent Taylor misunderstood the question put
to her and had only discussed the arrest with Agent Beam prior to com-
ing to trial:

          Q: Now, I believe that Mr. Butler questioned you about your
          conversations with Karen Beam today. Did you have any
          conversations with Karen Beam after she testified today?

          A: No, I did not.

          Q: And with regard to getting your stories straight, have you
          ever had a conversation with Agent Beam in an effort to get
          your stories straight?

          A: No, I haven't.

Agent Taylor testified further on recross:

          Q: And did you misunderstand me when I asked you if you
          talked to Officer Beam after she testified today and you
          said, "yes"?

          A: I have not spoken with her after she testified today.

          Q: You didn't do that?

          A: I did not.

          Q: So you didn't understand my question when I asked you
          that a few minutes ago?

          A: I thought you asked me prior to us coming in here today?

          Q: No, ma'am. After she testified?

          A: Oh, I misunderstood you.

                    4
could not do any more time. Lightner's counsel sought to suppress
this statement on the ground that it was the product of a custodial
interrogation and Lightner was never advised of his Miranda rights.

We reject this argument because the district court's factual findings
that Lightner was advised of his Miranda rights and that his statement
was voluntarily made are not clearly erroneous. See United States v.
Rusher, 966 F.2d 868, 873 (4th Cir.), cert. denied, 61 U.S.L.W. 3285
(1992). Officer Witherspoon testified that he read Lightner his
Miranda rights, that Lightner did not wish to waive his rights, that
Witherspoon ceased to question Lightner, and that Lightner's state-
ment that he could not go back to prison was not made in response
to any questioning.

Lightner also argues for the first time on appeal that even if he
were read his Miranda rights, the statement should have been sup-
pressed because it was the product of police coercion that rendered
his statement involuntary. Lightner has waived appellate review of
this claim but for plain error by his failure to specifically raise it
before the district court. See United States v. Olano, ___ U.S. ___, 61
U.S.L.W. 4421 (U.S. Apr. 26, 1993) (No. 91-1306). Lightner pres-
ented no evidence to support his allegations of coercion, and based on
the record below, the district court did not commit plain error in find-
ing that Lightner's statement was voluntarily made.

IV

Graves claims that the district court erred in enhancing his sentence
for his role in the offense. The Sentencing Guidelines provide for a
four-level enhancement where a defendant was a leader or organizer
of criminal activity that involved five or more participants or was oth-
erwise extensive. United States Sentencing Commission, Guidelines
Manual, § 3B1.1(a) (Nov. 1993). To qualify for this enhancement, the
defendant must have been a leader or organizer of at least one of the
participants to the criminal activity. USSG § 3B1.1, comment. (n.2).
The district court's determination that the defendant played an aggra-
vating role, that the crime involved five or more people, or that the
crime was otherwise extensive is a factual determination that we
review for clear error. United States v. Smith , 914 F.2d 565, 569 (4th
Cir. 1990), cert. denied, 498 U.S. 1101 (1991). The Government was

                    5
required to prove these elements by a preponderance of the evidence.
See McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986).

We reject Graves's arguments because the evidence adduced at
trial supported the court's findings. The evidence showed the exis-
tence of a conspiracy between Bachelor and Gordon in New Jersey
and Graves in Charlotte that was capable of procuring and selling
between 1.5 and 5 kilograms of cocaine in a ninety-day period.
Graves was clearly shown to be the leader of the Charlotte segment
of the conspiracy. Lightner purchased cocaine from Graves, and
Graves was the contact person responsible for picking up Gordon at
the airport.

Additionally, when Gordon paged Graves from the airport, Graves
called back and stated that he was sending "his girl" out to pick up
Gordon. Graves then called back and stated that he was sending "his
boy" to pick up Gordon instead. Ultimately Lightner arrived to pick
up Gordon. This testimony demonstrated that Graves exercised some
degree of organizational and supervisory control over at least Light-
ner and an unknown female. To the extent Graves alleges that Kim
Flemmings was the leader of the conspiracy, we note that whether
Flemmings was also a leader is irrelevant. See USSG § 3B1.1, com-
ment.(n.4). The district court's finding that Graves was a leader or
organizer of the conspiracy was not clearly erroneous.

Graves also contends that the Government failed to show that the
conspiracy was "otherwise extensive." We disagree. Based on the
large amount of drugs distributed across the country over such a short
period of time, such a finding could not be clearly erroneous. We
note, however, that this issue need not be decided. The Government
introduced evidence that the conspiracy involved at least Gordon,
Bachelor, Lightner, Graves, Bachelor's girlfriend, and Kim Flem-
mings. Accordingly, the conspiracy involved five or more people,
which satisfied the requirements of USSG § 3B1.1(a), independent of
a showing that it was "otherwise extensive."

Finally, Graves filed a supplemental informal brief raising several
issues not addressed by counsel.2 Although given the opportunity to
_________________________________________________________________
2 In addition, Graves contends that the district court erred in enhancing
his sentence for being a leader or organizer in the offense. However, that
claim was addressed in counsel's brief. As noted above, we find that
claim meritless.

                    6
do so, the Government failed to respond to Graves's supplemental
claims. Nevertheless, we find that Graves's contentions lacks merit.

First, Graves contends that he was denied his right to a special ver-
dict on the criminal forfeiture count contained in the indictment.
However, because the forfeiture count was dismissed on the Govern-
ment's motion, this claims lacks merit.

Next, we reject Graves's argument that the evidence of his partici-
pation in the distribution of cocaine powder was at material variance
with the indictment charging conspiracy to distribute cocaine base.
See United States v. Pierce, 893 F.2d 669, 676 (5th Cir. 1990), cert.
denied, 506 U.S. 1007 (1992). In any event, Graves was not preju-
diced because the evidence was strong of his participation in a con-
spiracy to distribute cocaine base. See United States v. Camps, 32
F.3d 102, 105 (4th Cir. 1994), cert. denied, ___ U.S. ___, 63
U.S.L.W. 3626 (U.S. Feb. 21, 1995) (No. 94-6853).

Additionally, we reject Graves's argument that he should not have
received an enhancement for obstruction of justice for perjuring him-
self at trial. The Government proved Graves's perjury by a preponder-
ance of the evidence. Further, the district court went through the
portions of the transcript reflecting Graves's perjury, reading the
questions and Graves's false answers into the record at sentencing.
The questions and answers clearly involved material matters, and they
were false. Further, the purpose behind the statements could only
have been to deceive. The court's finding of perjury, though not as
specific as it might have been, clearly rested on its determination that
Graves lied to the jury with the intent to deceive. See United States
v. Dunnigan, 507 U.S. 87 (1993); United States v. Smith, 62 F.3d 641
(4th Cir. 1995); United States v. Castner, 50 F.3d 1267 (4th Cir.
1995). We find that the application of the enhancement was not clear
error.

Finally, we reject Graves's argument that the 100:1 sentencing
ratio between cocaine base and cocaine powder is unconstitutionally
vague. Graves forfeited appellate review of this claim but for plain
error by his failure to raise it before the district court. See United
States v. Olano, ___ U.S. at ___, 61 U.S.L.W. at 4423-24. Graves's
reliance upon United States v. Davis, 864 F. Supp. 1303 (N.D. Ga.

                    7
1994) for the proposition that cocaine base and cocaine powder are
synonymous is foreclosed by our prior decisions finding the existence
of a distinction between cocaine base and cocaine powder in the way
it is sold and marketed, and because it is more addictive than cocaine
powder. See United States v. Bynum, 3 F.3d 769, 774 (4th Cir. 1993),
cert. denied, ___ U.S. ___, 62 U.S.L.W. 3552 (U.S. Feb. 22, 1994)
(No. 93-7295); United States v. Thomas, 900 F.2d 37, 39-40 (4th Cir.
1990). Accordingly, Graves has failed to establish plain error.

Lightner's and Graves's convictions and sentences are, accord-
ingly, affirmed. 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

                    8
