UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 96-4388
WILLIAM ROSCOE SAYLES, a/k/a Billy
R. Sayles,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 96-4389

JAMES EDWARD SPENCER, JR.,
Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-95-158)

Submitted: April 30, 1997

Decided: June 5, 1997

Before MURNAGHAN, WILKINS, and WILLIAMS,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Karyn M. Schmidt, Thomas L. Hawker, ROBINSON & MCELWEE,
Charleston, West Virginia; Hunt L. Charach, Federal Public
Defender, Edward H. Weis, First Assistant Federal Public Defender,
Charleston, West Virginia, for Appellants. Rebecca A. Betts, United
States Attorney, Monica K. Schwartz, Assistant United States Attor-
ney, Charleston, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

William Roscoe Sayles and James Edward Spencer, Jr. (Defen-
dants) appeal their convictions for conspiring to distribute and to pos-
sess with the intent to distribute cocaine base and aiding and abetting
the distribution of cocaine base. We affirm.

I.

The Government's evidence established that Officers Henderson,
Rinehart, Palmer and Randle of the Charleston, West Virginia Police
Department were members of the "Focus Patrol," assigned to monitor
high crime areas within the city's housing projects. Their efforts were
concentrated on the Orchard Manor housing project. Officer Hender-
son had received information in the weeks prior to Defendants' arrests
that there had been numerous complaints from residents regarding
drug trafficking activity in the area.

On the night Defendants were arrested, the Focus Patrol was cruis-
ing through an area of Orchard Manor in an undercover vehicle when
they noticed an unusual amount of activity. The officers observed an
individual who attempted to flag them down a couple of times as they

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made their passes through the area. The officers were aware that it
was possible for "lookouts," individuals in or bordering the street, to
direct potential drug customers to sellers and warn them of police
presence. When the officers did not stop, the suspected lookout
reacted by yelling "5-0," a code word for police.

The officers also observed individuals nearby in the stairway
entrances to the three-level apartment buildings. The officers were
aware based on their experience that drug dealers frequently loiter
near the doorway of stairways while they conduct drug transactions
so that they can disappear up the stairs into an apartment in case they
need to avoid detection and arrest. The officers, therefore, decided to
park at a point from which they could return on foot to the area.

When they returned to the area, they saw two males in the street,
one of whom was the individual who had tried to flag them down.
Officer Henderson then observed a sedan stop by the individual and
noted conduct that made him believe that a drug transaction was tak-
ing place. Officer Palmer believed that the individual and the other
male with him were both connected to the two individuals across the
street in the doorway entrance to the stairwell of one of the apartment
buildings. Officer Palmer recognized one of the individuals in the
doorway as Sayles, a felon barred from the Orchard Manor housing
project for life who, therefore, was trespassing. Officer Rinehart cal-
led for back-up and the four officers emerged from hiding.

Upon seeing the four officers, one of the individuals in the street
ran into one of the buildings and up the stairwell with Officer Hender-
son in pursuit. Officer Randle detained the other individual in the
street. Officers Palmer and Rinehart proceeded in the direction of
Sayles and Spencer, who were standing in the entrance to an apart-
ment building, and announced themselves as officers.

Officer Palmer, who had in the past issued five trespassing war-
rants against Sayles, moved forward to arrest Sayles for trespassing
and take him into custody. Spencer ran up the stairway with Sayles
following him. In the course of arresting Sayles, Officer Palmer
directed Sayles to raise his hands. Sayles, however, who was approxi-
mately six feet and nine inches tall, failed to raise his hands and
instead put them out to his side. Sayles's actions effectively partially

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blocked the stairway on which he was standing so that he obstructed
the path of any officer pursuing Spencer, who had run up the stair-
way. Officer Rinehart, who is five feet and eight inches, was able to
pursue Spencer by ducking under Sayles's arms.

Officer Rinehart chased Spencer to the third floor of the apartment
building where Officer Rinehart found Spencer with his back toward
him, fumbling with something on a window sill, as though he were
folding it over. Officer Rinehart ordered Spencer to put down what
he had and put his hands in the air; Spencer did so. Officer Rinehart
patted Spencer down for weapons and had him move over to the side
with his hands raised in the air. Officer Rinehart then saw a dispos-
able diaper on the window sill, which he unfolded and found two
plastic bags of a substance which appeared to him to be crack
cocaine. Subsequent testing revealed that the substance was 15.9
grams of crack cocaine. Officer Rinehart also seized $248 from Spen-
cer.

Shortly after Officer Rinehart handcuffed Spencer, according to
Officer Palmer, Sayles claimed that the drugs seized from Spencer
belonged to him. Sayles also indicated that the individual or individu-
als pursued by Officer Henderson got away with a larger amount of
drugs. Defendants were subsequently convicted and sentenced to ten
years imprisonment and eight years of supervised release. On appeal,
Defendants claim that: (1) there was no reasonable suspicion to justify
Spencer's detention and the subsequent search of the diaper; (2)
Sayles has standing to contest the legality of this search; (3) there was
insufficient evidence to support their conspiracy conviction; and (4)
the district court erred by not defining reasonable doubt to the jury.

II.

First, Defendants claim that the drugs seized from the search of the
diaper should have been suppressed because there was no reasonable
suspicion to justify Spencer's detention. We find, however, that the
officer had an articulable reasonable suspicion to detain Spencer and
conduct an investigatory search. Under Terry v. Ohio, 392 U.S. 1
(1968), an officer may stop and question an individual based upon
"specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion." Id. at

                    4
21. If those facts also lead an officer to believe that the individual
may be armed, then the officer may conduct a pat-down search for the
limited purpose of detecting weapons. Id. at 27-29. In evaluating the
validity of an investigative stop, a court must consider the totality of
the circumstances, including the information known to the officers
and any reasonable inferences to be drawn at the time of the stop.
United States v. Cortez, 449 U.S. 411, 417-18 (1981); United States
v. Crittendon, 883 F.2d 326, 328 (4th Cir. 1989).

In the present case, the evidence shows that the officers found
Defendants in a high-crime area. See United States v. Lender, 985
F.2d 151, 154 (4th Cir. 1993) (holding that presence in a high-crime
area is a factor which may raise reasonable suspicion to conduct a
Terry stop). The officers had also received information about com-
plaints from residents regarding drug trafficking activity, which they
independently corroborated from their own observations that night.
See Alabama v. White, 496 U.S. 325, 329-30 (1990) (holding that a
corroborated tip from an informant may provide basis for reasonable
suspicion); Crittendon, 883 F.2d at 328 (same). Next, the Focus Patrol
began patrolling the Orchard Manor area that night at approximately
6 p.m. and the incident that led to Defendants' arrest--the suspected
lookout attempting to flag them down--occurred at approximately
12:45 a.m. See Lender, 985 F.2d at 154 (stating that lateness of hour
is factor which may raise reasonable suspicion to conduct a Terry
stop). Further, the Focus Patrol had specific experience regarding
detection of drug trafficking activity in the area where Defendants
were arrested, they personally observed what they reasonably
believed to be a drug transaction just before they approached Defen-
dants, and Officer Palmer knew Sayles was trespassing. See Terry,
392 U.S. at 23 (holding that reasonable suspicion was partly based on
law enforcement's experience with thievery); United States v. Turner,
933 F.2d 240, 244 (4th Cir. 1991) (holding that officer with experi-
ence in narcotics investigation had reasonable suspicion to stop and
determine whether suspect was "cooking" drugs after observing her
carry a cup of water out of store, walk to car, and lean over front seat
as if to hide something). Further Defendants evaded the officers after
the officers identified themselves as such. Sayles even tried to
obstruct the pursuit of Spencer. Spencer was found fumbling with a
diaper as though he were attempting to hide something. See United
States v. Sharpe, 470 U.S. 675, 682-83 n.3 (1985) (holding that eva-

                    5
sive conduct is a factor that may give rise to reasonable suspicion);
Lender, 985 F.2d at 154 (same). In light of the totality of the circum-
stances, Officer Rinehart had reasonable suspicion to detain Spencer.
Thus, Officer Rinehart was entitled to conduct a limited search for
weapons to protect himself. See Terry, 392 U.S. at 27-29. Because
Spencer was fumbling with the diaper on the window sill when Offi-
cer Rinehart approached him, it was reasonable for Officer Rinehart
to search the diaper for his own protection as Spencer may have con-
cealed a weapon in the diaper, which was located close to him. There-
fore, the district court correctly denied Defendants' motion to
suppress. Because the search was valid, it is irrelevant whether Sayles
has standing to contest the search.

Second, Defendants contend that there was insufficient evidence to
support their convictions because there was no evidence that they
engaged in an agreement to possess with the intent to distribute drugs.
This court must uphold a jury verdict if, viewing the evidence in the
light most favorable to the prosecution, a rational trier of fact could
have found the essential elements of the crime beyond a reasonable
doubt. Glasser v. United States, 315 U.S. 60, 80 (1942); United States
v. Blue, 957 F.2d 106, 107 (4th Cir. 1992). The Government enjoys
the benefit of all reasonable inferences from the facts proved to facts
sought to be established. United States v. Tresvant, 677 F.2d 1018,
1021 (4th Cir. 1982).

To establish a defendant's participation in an illegal drug conspir-
acy, "the Government must establish that: (1) an agreement to possess
cocaine with intent to distribute existed between two or more persons;
(2) the defendant knew of the conspiracy; and (3) the defendant
knowingly and voluntarily became a part of this conspiracy." United
States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc), cert.
denied, 117 S. Ct. 1087. (The Government may use"circumstantial
evidence and the context in which the circumstantial evidence is
adduced," id. (citing Iannelli v. United States, 420 U.S. 770, 777 n.10
(1975)), to demonstrate a defendant's participation in a conspiracy
and his knowledge of the conspiracy's objectives. If the defendant
"`joins the conspiracy with an understanding of the unlawful nature
thereof and willfully joins in the plan on one occasion, it is sufficient
to convict him of conspiracy.'" Burgos, 94 F.3d at 858 (quoting
United States v. Roberts, 881 F.2d 95, 101 (4th Cir. 1989)).

                     6
The Government's evidence showed that Defendants were present
at approximately 1:00 a.m. in a high crime area. Sayles had been
banned for life from the Orchard Manor housing project. Defendants
were standing in an entrance to an apartment building near an individ-
ual whom the experienced police officers believed to be acting as a
drug lookout. When the officers approached Defendants, they fled up
a stairwell. Officer Palmer apprehended Sayles and told him to put his
hands up. Sayles, however, spread his arms to his side in an attempt
to obstruct the pursuit of Spencer. Spencer was found fumbling with
a diaper in a window sill; the diaper contained 15.9 grams of cocaine
base, some "rocked up" for individual sale. Also, Spencer had $248
in cash on him in various denominations. When Sayles realized that
Spencer was apprehended, Sayles admitted that the drugs were his.
Viewing the evidence in the light most favorable to the Government,
a rational trier of fact could have found the essential elements of a
conspiracy beyond a reasonable doubt.

Lastly, Defendants urge this court to overrule its prior holding that
a trial court should not define reasonable doubt for a jury even on
request from a defendant. However, this court has unequivocally
admonished trial courts not to define reasonable doubt to a jury,
absent a request from the jury. See United States v. Reives, 15 F.3d
42, 44-46 (4th Cir. 1994); United States v. Headspeth, 852 F.2d 753,
755 (4th Cir. 1988); United States v. Love, 767 F.2d 1052, 1060 (4th
Cir. 1985).

III.

For the foregoing reasons, we affirm Defendants' convictions. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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