UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                         No. 97-4641

SAMUEL WESLEY, JR., a/k/a Rick,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CR-97-33-CCB)

Submitted: August 18, 1998

Decided: October 28, 1998

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

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Howard L. Cardin, CARDIN & GITOMER, Baltimore, Maryland;
Flynn M. Owens, LAW OFFICES OF JACK B. RUBIN, P.A., Balti-
more, Maryland, for Appellant. Lynne A. Battaglia, United States
Attorney, John F. Purcell, Jr., Assistant United States Attorney, Balti-
more, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Samuel Wesley, Jr. appeals his jury convictions for conspiracy to
distribute and possess with intent to distribute cocaine,1 possession
with intent to distribute cocaine,2 aiding and abetting the use of a fire-
arm during a drug trafficking crime,3 and possession of a firearm by
a convicted felon.4 Wesley contends that the district court abused its
discretion by admitting portions of a co-conspirator's written corre-
spondence to another co-conspirator because the statements contained
therein were not made in furtherance of the conspiracy. Wesley also
alleges that the district court improperly denied his motion for acquit-
tal on the use of a firearm charge. Finding no reversible error, we
affirm Wesley's convictions.

On May 30, 1996, Wesley and co-conspirator Kristen Klaput
arrived at Baltimore-Washington International Airport ("BWI") on a
return trip from Los Angeles, California. Drug Enforcement Adminis-
tration ("DEA") agents had been conducting surveillance at the airport
for Wesley and Klaput on the information that Klaput, a suspected
drug courier, would be arriving at BWI from Los Angeles on that
date. When Klaput arrived at the airport, DEA agents approached and
briefly questioned her; she confessed to carrying a kilogram of
cocaine in her suitcase.5 Upon her arrest, Klaput immediately cooper-
ated with the authorities and identified Wesley as the person for
_________________________________________________________________
1 See 21 U.S.C. § 846 (1994).
2 See 21 U.S.C. § 841(a) (1994).
3 See 18 U.S.C. § 2 (1994); 18 U.S.C.A. § 924(c)(1) (West Supp.
1998).
4 See 18 U.S.C.A. § 922(g) (West Supp. 1998).
5 While in Los Angeles, Wesley taped the kilogram of cocaine to
Klaput's body. Later, in an airport restroom, she placed the cocaine in
her suitcase.

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whom she was carrying the cocaine. Wesley, arriving at BWI on the
same flight from Los Angeles, was also arrested at the airport. Both
Wesley and Klaput were then charged in Maryland state court with
conspiracy to distribute cocaine and related offenses. Three days
before Klaput was scheduled to testify against Wesley, she was shot
in the head, neck, and right leg when she answered the door to her
apartment. With evidence of Wesley's involvement in the shooting,
his criminal case was referred for federal prosecution. The grand jury
issued an indictment, and Wesley was arrested at the clothing store
he operated. Pursuant to this arrest, officers seized from the store a
9mm semi-automatic pistol, an electronic scale with cocaine residue,
and a box of plastic baggies typically used to package cocaine for dis-
tribution.

At Wesley's federal trial, Klaput testified that in April 1995, her
boyfriend, Richard Maurice Holmes, recruited her to illegally trans-
port cocaine for Wesley from Los Angeles to Baltimore.6 Wesley paid
Klaput $1000 for each trip in addition to paying for her airfare and
lodging. Klaput traveled to Los Angeles as Wesley's courier every
two to three weeks, always transporting at least one kilogram of
cocaine on each occasion. Wesley always accompanied her to pur-
chase and secure the cocaine for the return trip to Baltimore. Klaput
also testified that Wesley threatened that if she were ever arrested and
chose to cooperate with the authorities, both she and her infant child
would be killed.

The Government also presented witnesses who testified that on the
day that Klaput was shot, Wesley was with two other individuals who
asked in which apartment "that white girl" lived, even offering one
witness $200 to knock on Klaput's door. The witness refused.
Another witness overheard these individuals say they were going to
have to go to court for drugs and that they would have to get that
"white girl."7 Still another witness identified Wesley as the man seen
entering Klaput's apartment building moments before the shooting
_________________________________________________________________
6 Klaput had acted as a courier for Holmes and his associate, William
Watts, bringing drugs from New York to Baltimore since the summer of
1994.
7 Klaput was the only Caucasian female residing in that apartment
building.

                    3
and later seen running from the vicinity of Klaput's apartment to the
rear of the building after the shooting.

Holmes corroborated Klaput's testimony that he recruited her first
as a courier for his and William Watts' drug trafficking activities and
later to work in that same capacity for Wesley shortly after Watts
introduced Wesley and Holmes in April or May 1995. Holmes
assisted Klaput in her capacity as Wesley's drug courier: he advised
her, coordinated her contacts with Wesley, and provided her transpor-
tation to and from the airport. For his assistance, Wesley allowed
Holmes to purchase a portion of the cocaine that he and Klaput
brought back from Los Angeles at a wholesale price.

In September 1995, Holmes was arrested and incarcerated on a
parole violation. Despite his incarceration, Holmes maintained written
correspondence with Klaput. Over defense objection, the district court
allowed the Government to introduce portions of two of these letters
into evidence. The court ruled that the selected portions of these let-
ters were admissible under Fed. R. Evid. 801(d)(2)(E) because there
was proof that Wesley, Klaput, and Holmes were engaged in a drug
trafficking conspiracy and that the letters were written during and in
furtherance of that conspiracy. The admitted portion of the first letter,
dated October 1, 1995, read:

          I need you to contact Rick and see when he will need you
          to go to L.A., if it is soon then fine, if not see if he will loan
          you the money for the lawyer to represent me at my revoca-
          tion hearing.

In the second letter, dated October 22, 1995, Holmes wrote:

          So let Rick and T know that you are getting ready to retire
          unless they want you to train or recruit someone for them.
          They will use you until you are caught. If you get caught
          now it is no loss to them because you have gotten by so
          many times.

Wesley concedes that until Holmes's incarceration in September
1995, Holmes and Klaput had both been involved in his drug traffick-

                     4
ing activities. However, on appeal, Wesley contends that Holmes was
no longer a member of the conspiracy because he was incarcerated
when he wrote the letters. As a result, the statements contained in
those letters could not have been written in furtherance of the conspir-
acy. We disagree.

To admit a co-conspirator's statement under Fed. R. Evid.
801(d)(2)(E), the court must conclude that a conspiracy existed, that
the declarant and the party against whom the testimony is sought to
be admitted were both engaged in the conspiracy, and that the state-
ments at issue were made in the course of and in furtherance of the
conspiracy.8 The Government must prove each element by a prepon-
derance of the evidence,9 and a district court's decision to admit such
testimony is reviewed for abuse of discretion.10

We find that the disputed portions of the correspondence between
Holmes and Klaput were properly admitted. The trial evidence estab-
lished a conspiracy between Wesley, Holmes, and Klaput to illegally
transport and distribute cocaine. Further, the statements in both letters
were made in the course of and in furtherance of that conspiracy. In
the first letter, Holmes encouraged Klaput to contact Wesley to ascer-
tain if she were needed to make a trip to Los Angeles. He needed
money for an attorney, money that Klaput could obtain either by
working as Wesley's courier or by personally borrowing from Wesley
on Holmes's behalf. Either alternative fully implicates the objectives
of their conspiracy.

The second letter spoke exclusively of Klaput's future involvement
in the conspiracy. Holmes advised Klaput that she should inform
Wesley of her intentions to retire from the conspiracy, admonishing
her that she might still be required to train or recruit her replacement.
He also warned her of the consequences if she were caught. The fact
that Holmes was incarcerated when he wrote these letters does not
mean that he had withdrawn from the conspiracy. 11 There is no evi-
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8 See United States v. Neal, 78 F.3d 901, 905 (4th Cir.), cert. denied,
___ U.S. ___, 65 U.S.L.W. 3260 (U.S. Oct. 7, 1996) (No. 95-9410).
9 See Bourjaily v. United States , 483 U.S. 171, 175 (1987).
10 See United States v. Blevins , 960 F.2d 1252, 1255 (4th Cir. 1992).
11 United States v. West, 877 F.2d 281, 289 (4th Cir. 1989) (holding co-
conspirator's "membership in a conspiracy is presumed to continue until
he withdraws from the conspiracy by affirmative action.").

                     5
dence that Holmes "acted to defeat or disavow the purposes of the
conspiracy."12 In fact, in the first letter, he expressly sought to reap
the benefits of the conspiracy's illegal activities. Therefore, we find
that both statements clearly fall within the hearsay exception; there-
fore, the district court's findings were not clear error. Nor did the
court abuse its discretion in admitting this evidence.

Next, Wesley contends that the court erred in denying his motion
for a judgment of acquittal in relation to the offense of using a firearm
during and in relation to a drug trafficking offense.13 He alleges that
there was insufficient evidence to find that the firearm involved in
Klaput's shooting was used "during and in relation to" any drug traf-
ficking crime because Klaput was shot more than five months after
their arrest at BWI and because there was no evidence that Wesley
continued to engage in drug trafficking after his arrest in May 1996.

We must sustain a jury verdict "if there is substantial evidence, tak-
ing the view most favorable to the Government, to support it."14 This
same sufficiency of the evidence standard of review applies in our
review of a denial of a motion for acquittal.15 To prove a violation of
18 U.S.C.A. § 924(c)(1), the Government must show that: (1) the
defendant used or carried a firearm, and (2) the defendant did so dur-
ing and in relation to a drug trafficking offense or crime of violence.

We find sufficient evidence supports Wesley's § 924(c)(1) convic-
tion. The Government's evidence established that Wesley shot Klaput
three days before she was scheduled to testify against him in state
court. The actual firing of a firearm clearly satisfies the "active
employment" requirement for use of a firearm as outlined in Bailey.16
While the phrase "during and in relation to" is expansive, the firearm
must at least have some purpose or effect with respect to the drug
trafficking crime; its presence or involvement cannot be the result of
_________________________________________________________________
12 Id.

13 See 18 U.S.C.A. § 924(c)(1).
14 Glasser v. United States, 315 U.S. 60, 80 (1942).

15 See United States v. Davis, 98 F.3d 141, 144 (4th Cir. 1996), cert.
denied, ___ U.S. ___, 65 U.S.L.W. 3630 (U.S. Mar. 17, 1997) (No. 96-
7755).

16 See Bailey v. United States, 516 U.S. 137, 148 (1995).

                     6
accident or coincidence. Instead, the gun must facilitate, or have the
potential of facilitating, the drug trafficking offense.17

Here, the evidence establishes that Wesley threatened to kill Klaput
and her child if she ever cooperated with the police. Despite this
threat, when Klaput was arrested in May 1996, she immediately coop-
erated with the police, informing them that she worked for Wesley,
giving explicit details concerning his drug trafficking business opera-
tions, and agreeing to testify against Wesley. In an effort to avoid
prosecution on the state drug charges, Wesley shot Klaput in an
attempt to silence her before she could testify against him. There was
no evidence that Klaput's shooting was an accident or that it was
merely a coincidence that it occurred three days before Wesley's trial.
Further, there was no evidence that Wesley affirmatively withdrew
from the conspiracy. His arrest in May 1996, does not establish
withdrawal.18 That the shooting occurred five months after their arrest
is of little consequence. It is sufficient that the purpose of the shooting
was grounded in Wesley's involvement with the drug trafficking
conspiracy.19

Accordingly, we affirm Wesley's convictions. Further, while we
grant Wesley's motion to file a pro se supplemental brief, we reject
his claim challenging the Government's grant of immunity to its wit-
nesses in exchange for their truthful testimony and his claim challeng-
ing the admission of Klaput's direct trial testimony as hearsay.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED
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17 See Smith, 508 U.S. at 238.

18 See West, 877 F.2d at 289.

19 See United States v. Wilson, 135 F.3d 291, 304-05 (4th Cir. 1998)
(finding evidence sufficient to support § 924(c)(1) conviction when
defendants brandished firearms and pistol whipped victim who no longer
wanted apartment to be used as safe haven for drug dealers), cert. denied,
___ U.S. ___, 66 U.S.L.W. 3758 (U.S. May 26, 1998) (No. 97-8750).

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