UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                        No. 97-4083

FREDDIE JONES, JR.,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                        No. 97-4084

MILTON LEWIS, a/k/a Flash,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                        No. 97-4107

TORRANCE JONES, a/k/a Tube,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(CR-96-79-BO)

Argued: May 7, 1998

Decided: November 2, 1998

Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.
Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Terry Goodwin Harn, Chapel Hill, North Carolina; Brid-
gett Britt Aguirre, AGUIRRE LAW OFFICE, Fuquay-Varina, North
Carolina, for Appellants. Anne Margaret Hayes, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:
Gordon M. Widenhouse, FEDERAL PUBLIC DEFENDER'S
OFFICE, Raleigh, North Carolina, for Appellant Lewis. Janice
McKenzie Cole, United States Attorney, Raleigh, North Carolina, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

This case arises from the prosecution of several defendants for their
participation in drug trafficking. In this consolidated appeal, Torrance
Jones, Freddie Jones, Jr.,1 and Milton Lewis appeal their convictions
and sentences on various grounds. Finding no reversible error, we
affirm.

I.

On April 23, 1996, a federal grand jury returned an indictment
against nine defendants, including appellants Torrance and Freddie
Jones, and Lewis. Count One of the indictment charged each of the
_________________________________________________________________
1 The indictment spells Freddie Jones' name Freddy, but other docu-
ments spell the name Freddie. We use Freddie because our clerk advises
it will be used in the style of the case in the filed opinion.

                    2
three defendants with conspiracy to possess with intent to distribute
cocaine and cocaine base in violation of 21 U.S.C.§§ 841(a)(1) and
846. Counts Seven and Eight also charged Freddy and Torrance with
possession with intent to distribute cocaine and crack cocaine in vio-
lation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.§ 2. Following a trial,
the jury found the defendants guilty as charged. Following sentenc-
ing, each defendant filed a timely notice of appeal. Jurisdiction in this
court is proper under 28 U.S.C. § 1291.

All three defendants contend that their convictions should be over-
turned based on the prosecution's failure to turn over the criminal his-
tories and witness statements of government witnesses. Next,
Torrance claims that the district court gave an erroneous and prejudi-
cial supplemental jury instruction regarding constructive possession.
Lewis challenges the district court's supplemental jury instruction
regarding the formation of a conspiracy with a government agent.
Lewis also asserts that the district court erred in denying his motion
for severance. Next, Torrance argues that the district court's conduct
deprived him of a fair trial and challenges his sentence on the grounds
of the amount of drugs attributed to him and the enhancement for his
role in the offense. Finally, all defendants challenge the district
court's sentencing based on cocaine and crack cocaine following the
jury's return of a general verdict of guilty. We address seriatim defen-
dants' challenges to their convictions and sentences.

II.

A.

We first address the issue of the prosecution's alleged failure to
disclose certain information favorable to the defense as required by
Brady v. Maryland, 373 U.S. 83 (1963). Under Brady and its progeny,
the failure to disclose "evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or
to punishment." Brady, 373 U.S. at 87; see Kyles v. Whitney, 514 U.S.
419, 431 (1995); Hoke v. Netherland, 92 F.3d 1350, 1356 (4th Cir.),
cert. denied, 117 S. Ct. 630 (1996). Favorable evidence includes evi-
dence that could be used to impeach government witnesses. United
States v. Ellis, 121 F.3d 908, 914 (4th Cir.), cert. denied, 118 S. Ct.
738 (1998). Evidence is considered material "only where there exists

                     3
a `reasonable probability' that had the evidence been disclosed the
result of the trial would have been different." Ellis, 121 F.3d at 914
(quoting Wood v. Bartholomew, 516 U.S. 1, 5 (1995)). A "reasonable
probability" of a different result is established if the government's
failure to disclose evidence "undermines confidence in the outcome
of the trial." Ellis, 121 F.3d at 914 (quoting Kyles, 514 U.S. at 434).

In this case, defendants argue that the prosecution failed to disclose
the prior criminal histories of two government witnesses, Michael
Rubel and Richard Mann. In particular, defendants point to Rubel and
Mann's participation in a Florida incident involving a stolen firearm.
Defendants assert that the prosecution's failure to turn over this prior
criminal history of Rubel and Mann hampered their cross-
examination of Rubel and Mann. During oral argument before this
court, defense counsel conceded that he had received the "rap sheet"
of Rubel during discovery, but stated that the rap sheet did not contain
information regarding the Florida incident.2 However, trial counsel
for Lewis and Torrance demonstrated their knowledge of the firearm
incident during cross-examination of these two witnesses. For exam-
ple, counsel asked Rubel whether he had been convicted of larceny
of a firearm in Florida in June of 1995. Rubel responded affirmatively
and stated that he was currently on probation for that offense. Defense
counsel also asked Mann about the Florida firearm incident, and
Mann admitted helping Rubel steal the gun. While arguing an eviden-
tiary matter, counsel for Torrance again indicated her knowledge of
Rubel's involvement in the Florida firearm incident. Based on this
actual knowledge by defendants, we are of opinion that their Brady
claim must fail. In order to establish a Brady violation, defendants
must show that the government's failure to disclose certain materials
undermined confidence in the outcome of the trial. Here, the record
shows that defendants obtained and used the same information they
contend the prosecution should have turned over. Thus, defendants
_________________________________________________________________
2 Defense counsel contends that the "rap sheet" did not contain any
information about the Florida incident involving Rubel. The government
responds that the Florida incident did not appear in the criminal history
provided because the case resulted in a probation before judgment sen-
tence such that there was no judgment on record. Defendants argue that
the incident appeared in Florida records as a no contest plea with two
years probation and thus should have been disclosed.

                    4
cannot meet the standards of Brady, and we affirm the judgment of
the district court.3

B.

Defendants next claim that the district court erred in failing to
make an in camera examination of a law enforcement agent's notes
in order to determine whether the notes were required to be produced
under the Jencks Act, 18 U.S.C. § 3500. At trial, defendants moved
for production of notes taken by a law enforcement agent during an
interview of government witness Richard Mann. Defendants claimed
that the notes constituted "statements" under the Jencks Act. The gov-
ernment responded that there were no Jencks Act statements relating
to Mann. Without conducting an in camera inquiry, the district court
declined to require production of the notes. We review the district
court's fact finding for clear error. United States v. Roseboro, 87 F.3d
642, 645 (4th Cir. 1996).

After a government witness has testified on direct examination, the
government is required to turn over any "statement" of the witness in
its possession that relates to the subject matter of the witness's testi-
mony. 18 U.S.C. § 3500(b). In this context, a statement is defined to
include "a written statement made by said witness and signed or oth-
erwise adopted or approved by him" or a contemporaneous recording
of a witness's oral statement that is a "substantially verbatim recital."
18 U.S.C. § 3500(e)(1), (2).

In the present case, Mann testified that an officer took notes during
his interview and stated that the officer "might ask [Mann] to repeat
[himself]" in order to ensure accuracy. However, there is no evidence
in the record indicating that the notes were a "substantially verbatim
recital" of Mann's oral statements or that Mann approved or adopted
the notes as his own. Moreover, the district court's decision not to
review the notes in camera is consistent with this court's recent deci-
sion in Roseboro, a case decided on similar facts. Roseboro, 87 F.3d
_________________________________________________________________
3 Because we conclude that the defendants actually possessed the infor-
mation that is the subject of their Brady claim, albeit by independent
investigation, we express no opinion as to whether the government had
a Brady obligation to disclose such information.

                     5
at 646. While, as Roseboro concludes, a simple review of the notes
by the district court would have avoided the problem, we conclude
this was not reversible error.

C.

Defendants next challenge two supplemental jury instructions
given by the district court in response to written questions from the
jury. Defendants first argue that the district court erred in responding
to the jury's questions without first consulting counsel. Although bet-
ter practice is to hear counsel before giving a supplemental instruc-
tion, reversible error does not occur unless the defendant suffers some
prejudice. United States v. Polowichak, 783 F.2d 410, 413-14 (4th
Cir. 1986).

In examining a district court's response to a request for clarifica-
tion from the jury, the issue is whether the court responded to the
jury's inquiry "fairly and accurately without creating prejudice."
United States v. Smith, 62 F.3d 641, 646 (4th Cir. 1995) (citing
United States v. United Medical and Surgical Supply Corp., 989 F.2d
1390, 1407 (4th Cir. 1993)). The decision to give a supplemental
instruction and the specific words chosen are left to the discretion of
the district court. Smith, 62 F.3d at 646 (citing United States v.
Horton, 921 F.2d 540, 546 (4th Cir. 1990), cert. denied, 501 U.S.
1234 (1991)). Applying these standards, we consider the supplemen-
tal instructions given by the district court.

First, defendant Torrance challenges the district court's supplemen-
tal instruction on constructive possession. After starting deliberations,
the jury stated: "[w]e need the definition again of possession."4 The
district court responded by providing definitions of actual possession,
constructive possession, sole possession, and joint possession. Defen-
dant objects to the district court's definition of"constructive posses-
sion" based on the court's statement that constructive possession is
the right to exercise dominion and control. The defendants argue that
it is the power to exercise dominion and control, rather than the right,
which is involved. In relevant part, the district court stated:
_________________________________________________________________
4 Apparently possession had not been defined in the original jury
instructions.

                    6
          Constructive possession means when you have the right to
          exercise control and dominion over something . . . And my
          glasses are in my constructive possession now because
          they're my glasses. And if I want them I can get them. Now,
          if I put my glasses back in my office and left them on the
          desk, they'd still be in my constructive possession because
          they're mine and I can get them when I want them. If I left
          them at home on my dresser they would still be in my con-
          structive possession. I'm not there. Well, why are they in
          my possession? They're in my possession because they're
          mine and if I want them I can get them.

This court has stated that constructive possession may be established
by showing that a defendant had the power to exercise dominion and
control over an object. United States v. Burgos , 94 F.3d 849, 873 (4th
Cir. 1996), cert. denied, 117 S. Ct. 1087 (1997). However, other
courts have used the term "right" as a substitute for the word "power"
in defining constructive possession. See, e.g., United States v. Brito,
136 F.3d 397, 409 (5th Cir. 1998); United States v. Gonzalez, 71 F.3d
819, 834 (11th Cir. 1996); United States v. Williams, 952 F.2d 418,
420 (D.C. Cir. 1991), cert. denied, 506 U.S. 850 (1992); United States
v. Latham, 874 F.2d 852, 861 (1st Cir. 1989); United States v.
Martorano, 709 F.2d 863, 866 (3d Cir.), cert. denied, 464 U.S. 993
(1983). We are of opinion that any distinction between power and
right is only a play on words and is a distinction without a difference.
No prejudice resulted, and accordingly, defendant's claim fails.

Next, Lewis challenges the district court's response to the jury's
inquiry regarding the possibility of a conspiracy between Lewis and
government agent Rubel. The initial jury charge included the follow-
ing statement:

          [W]hen Mr. Rubel was arrested and then became a cooperat-
          ing person, he then was not in a position to continue as a
          conspirator. So the things that he did after that wouldn't be
          the basis for him being a conspirator with someone else. But
          persons could be conspirators with each other, other than
          with him. And they certainly could be conspirators with him
          before the time that he became a cooperating defendant.

                    7
After deliberating for several hours, the jury asked the court the fol-
lowing question: "If Milton Lewis conspired to deal drugs with Mike
Rubel on the day and night of Milton's arrest, does that make Milton
guilty of conspiracy in accordance with the indictment? We may need
an explanation of conspiracy in connection with Mike Rubel." The
district court responded, in relevant part, as follows:

          Apparently the parenthetical charge that I gave you about
          Mr. Rubel was something that confused you rather than
          helped you. And I will put that into perspective now. The
          government's theory of the case and the evidence that it has
          offered has nothing to do with the day of the arrest specifi-
          cally as proof of the conspiracy. The conspiracy is alleged
          to have taken place historically, meaning January 1995
          through that date. The events of that date weren't the core
          events of the conspiracy. That was the conclusion and wrap-
          ping up of the case according to the government's evidence.
          And so if for a moment the defendant Lewis or the defen-
          dant Jones or the other defendant Jones conspired with
          another person to violate the drug trafficking laws, the crime
          is complete. That's the government's theory of the case.
          And all I was telling you was that Rubel, when he became
          a defendant, i.e. was arrested, was removed from voluntarily
          being involved in future criminal activity and then became
          a cooperating witness, as such he could not be a conspirator
          because he was not then engaged in a crime.

As noted above, the preferred practice would have been for the dis-
trict court to hear counsel before responding to the jury's inquiry.
Polowichak, 783 F.2d at 413-14. However, as noted, we can find
reversible error only if the error is prejudicial.

Lewis argues that the district court erred in not providing a more
direct answer to the jury's inquiry and asserts that"no" would have
been a sufficient and more appropriate response. We are of opinion
that the district court's supplemental instruction fairly and accurately
responded to the jury's question by explaining that after Rubel began
cooperating with the government, he could not be part of a conspir-
acy. See United States v. Hayes, 775 F.2d 1279, 1283 (4th Cir. 1985).
Even if the response could have been more concise or direct, we can-

                    8
not say that the district court abused its discretion in selecting the
exact wording of its instruction. Moreover, Lewis cannot establish
any prejudice arising from the instruction because record evidence
unrelated to Rubel supports his conspiracy conviction. Lewis's argu-
ment that the supplemental instruction "essentially directed a verdict
against [him]" also lacks merit.

Because we do not conclude that the supplemental instruction was
legally incorrect, we also reject defendant's claim that his conviction
must be reversed because the jury's verdict may have relied on an
invalid theory of law.5

D.

Lewis also contends that the district court erred in denying his
motion to sever his case from the trial of Freddie and Torrance. How-
ever, we are unable to locate any such motion by Lewis in the record
before us. Rather, the record reflects only a motion by Lewis to sever
his case from the trial of six defendants other than defendants Freddie
and Torrance.6 Because Lewis was not tried with these six other
defendants and apparently did not file a motion to sever his trial from
the trials of Freddie and Torrance, his attempted appeal on this issue
is wholly without merit.7
_________________________________________________________________
5 Although only Lewis challenges the supplemental instruction regard-
ing a conspiracy with a government agent, all defendants claim that their
convictions should be set aside because the jury's verdict may have
relied on an invalid theory of law. We fail to see how this claim relates
to defendants Torrance and Freddie and thus do not address this issue as
to these two defendants.
6 The docket sheet indicates the filing of "Supplemental Facts and
MEMORANDUM of Law by Milton Lewis in support of[his May 28,
1996] motion to sever." However, there is nothing on the docket sheet
indicating that Lewis filed any subsequent motions to sever his trial from
that of Freddie and Torrance.

7 Even if Lewis filed a motion to sever from Freddie and Torrance that
for some reason has not appeared in the record before us, we would
affirm the judgment of the district court. We review a district court's
denial of a motion to sever for an abuse of discretion. United States v.
McManus, 23 F.3d 878, 882 (4th Cir. 1994), cert. denied, 517 U.S. 1215

                     9
E.

Torrance also claims that various conduct and statements of the
district court during the trial deprived him of due process and a fair
trial by prejudicing the jury. Torrance first points to pretrial conduct
of the district court, but the conduct cited relates to Freddie and thus
is irrelevant to Torrance's claims. In addition, at least five of the inci-
dents cited by Torrance occurred outside the presence of the jury.
Another statement cited by defendant does not appear in the trial
transcript.8 The remaining incidents do not merit extended discussion.
We have carefully reviewed the record regarding the incidents cited
by Torrance and fail to see any prejudice to Torrance resulting from
the district court's conduct. Defendant's claims of improper conduct
by the district court are not supported by the record and thus are with-
out merit.

F.

Torrance contends that the district court made two errors in calcu-
lating the applicable sentencing guideline range. First, Torrance chal-
lenges the quantity of drugs attributed to him in the district court's
calculation of his base offense level. Next, Torrance argues that the
district court improperly enhanced his sentence based on his role in
the offense. For purposes of sentencing, the government must prove
the quantity of drugs for which the defendant should be held account-
able by a preponderance of the evidence. United States v. Estrada, 42
F.3d 228, 231 (4th Cir. 1994). In proving the quantity of drugs, the
_________________________________________________________________
(1996). Under Fed. R. Crim. P. 14, a court may grant a severance of
defendants if the defendant is prejudiced by joinder. In this case, Milton
has failed to assert a colorable claim of prejudice that would demonstrate
an abuse of discretion by the district court. Thus, we are of opinion that
the district court did not abuse its discretion in denying Lewis's motion
for severance, if such motion was in fact made.
8 Defendant made a motion to correct the trial transcript on the basis of
this and other alleged statements. However, after reviewing the audio
recording of the trial, the defense has agreed that the comment was not
made during the trial. See "Notice of Resolution of all Transcript Chal-
lenges" (submitted April 7, 1998).

                     10
government may rely on information contained in the presentence
report unless the defendant demonstrates that the information is unre-
liable. United States v. Gilliam, 987 F.2d 1009, 1014 (4th Cir. 1993).
The quantity of drugs attributed to the defendant is a factual determi-
nation, and thus we review the district court's findings for clear error.
United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Like-
wise, we review the district court's factual determination regarding
Torrance's role in the offense for clear error. United States v.
Hyppolite, 65 F.3d 1151, 1159 (4th Cir. 1995), cert. denied, 517 U.S.
1162 (1996).

The presentence report recommended that Torrance be held
accountable for 79 kilograms of cocaine and 26.3 kilograms of
cocaine base, yielding a base offense level of 38. Torrance argues that
the district court should not have included drug quantities based on
statements of Ricky Draper in calculating his base offense level.9
According to the presentence report, Draper told investigators that he
met Torrance in the winter of 1994 and that he subsequently began
purchasing 1/4 to 1/2 kilogram of cocaine from Torrance on a weekly
basis. According to Draper, these purchases continued for at least one
year. Based on this information, the probation officer used the lower
figure of 1/4 kilogram and calculated the total amount of cocaine
powder at 13 kilograms (250 grams x 52 weeks). Draper also stated
that Torrance was supplying another individual with 1/2 kilogram of
cocaine base on a weekly basis during this period, yielding 26 kilo-
grams of cocaine base (500 grams x 52 weeks). At the sentencing
hearing, the government also presented the testimony of Agent Brad
Kennon of the Raleigh Police Department, who testified about his
interviews with Draper. In response to questioning by the district
court, the probation officer indicated that Torrance would have to be
found accountable for "[m]ore than 1.5 kilograms" of cocaine base in
order to raise the base offense level from a 36 to a 38. The court then
found "by a preponderance of the evidence that there is a sufficient
_________________________________________________________________
9 At the sentencing hearing, defendant conceded that an appropriate
base offense level without the statements of Ricky Draper would be 34.
At that time, the district court found that evidence adduced at trial sup-
ported a base offense level of 36. Thus, the issue is whether the testi-
mony of Ricky Draper can be used to increase the base level from 36 to
38.

                     11
amount of at least 1.5 kilograms and probably significantly more. To
raise [the base offense level] to a level 38."10 Based on our review of
the record, we are of opinion that the district court's factual findings
as to the amount of drugs attributable to Torrance are not clearly erro-
neous.

Torrance next challenges the district court's two-level enhance-
ment based on managerial role in the offense.11 This enhancement is
permissible under Section 3B1.1 of the Sentencing Guidelines if the
defendant is an "organizer, leader, manager, or supervisor" in the
criminal activity. The record evidence supports the district court's
application of Section 3B1.1's two-level enhancement to Torrance.
For example, the presentence report indicates that Torrance employed
couriers to facilitate the transportation of drugs to North Carolina.
This statement is supported by the trial evidence. Therefore, we are
unable to conclude that the district court's application of a two-level
enhancement for Torrance's managerial role in the offense was
clearly erroneous. Accordingly, we affirm the sentence imposed by
the district court.

G.

Count One of the indictment charged Lewis, Freddie, Torrance,
and six other defendants with conspiracy "to possess with intent to
distribute cocaine and cocaine base (crack)." (emphasis added). The
jury returned a general verdict of guilty on Count One as to all three
defendants. The district court sentenced the three defendants based on
his findings that the illegal conduct involved both cocaine and cocaine
_________________________________________________________________
10 We note that an offense involving solely 1.5 kilograms of cocaine
base is sufficient to establish a base offense level of 38. United States
Sentencing Guidelines § 2D1.1. Therefore, the district court's finding
that 1.5 kilograms of cocaine base could be attributed to Torrance based
on Draper's statements is a sufficient ground for assigning a base offense
level of 38, and the court's findings regarding the amounts proven at trial
are rendered superfluous.
11 In his brief, defendant appears to allege that he received either a three
or four-level increase. However, the transcript of the sentencing hearing
indicates that the district court applied a two-level increase for Tor-
rance's role in the offense.

                    12
base. Defendants argue that the general verdict forms are ambiguous
because they do not specify the statutory object of the conspiracy
under 21 U.S.C. § 846. Defendants claim that it is thus impossible to
know whether the jury found each defendant guilty of conspiracy to
distribute only cocaine, only cocaine base (crack), or both cocaine and
crack cocaine.

In this case, both the indictment and the jury instructions12 were
phrased in the conjunctive, that is a conspiracy to distribute both
cocaine and cocaine base. Thus, the jury necessarily found that the
defendants were involved in a conspiracy to distribute both drugs, and
the district court's sentencing on both was consistent with the indict-
ment and the jury instructions. Moreover, the district court's sentenc-
ing for both cocaine and cocaine base accords with the Sentencing
Guidelines and the role of the sentencing judge as set forth in
Edwards v. United States, 66 U.S.L.W. 4293 (U.S. Apr. 28, 1998)
(No. 96-8732). Thus, the district court did not err in sentencing defen-
dants based on both cocaine and cocaine base.

III.

We thus affirm the convictions and sentences of all three defen-
dants.

AFFIRMED
_________________________________________________________________
12 The district court's jury charge included the following statement:

          In the indictment in count one the defendants Torrance Jones,
          [Freddie] Jones and Milton Lewis are charged with knowingly,
          intentionally and unlawfully conspiring and agreeing together
          and with other persons to possess with intent to distribute
          cocaine and cocaine base. And so the government has to prove
          that that's what they did. That they had a conspiracy to possess
          with intent to distribute both cocaine and cocaine base. (empha-
          sis added)




                    13
