UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4686

GREG STEVEN COOKE,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
James A. Beaty, Jr., District Judge.
(CR-95-160-6)

Argued: March 6, 1998

Decided: April 23, 1998

Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and
CLARKE, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: William L. Osteen, Jr., ADAMS & OSTEEN, Greens-
boro, North Carolina, for Appellant. Paul A. Weinman, Assistant
United States Attorney, Winston-Salem, North Carolina, for Appel-
lee. ON BRIEF: A. Wayland Cooke, HARRISON, NORTH,
COOKE, & LANDRETH, Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Winston-Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Greg Steven Cooke was convicted in the district court of conspir-
acy to possess with intent to distribute cocaine in violation of 21
U.S.C. § 846. The district court sentenced Cooke to 188 months
imprisonment. Cooke appeals his conviction and sentence. We affirm.

I.

The conspiracy in which Cooke participated involved the shipment
of cocaine by co-conspirators from Florida to Cooke in North Caro-
lina. The conspiracy began sometime in 1989 or 1990 and lasted until
at least July 10, 1995, the date of the Indictment. In the conspiracy,
cooperating co-conspirators Richard William Goodale and Robert
William Curley traveled from Florida to North Carolina and delivered
cocaine to Cooke at his various residences. Curley's girlfriend, Donna
Ponzio, also accompanied Curley on several of these trips.

At trial Goodale, Curley, and Ponzio testified for the government.
Goodale testified that he made approximately five trips to Cooke's
house in Mt. Airy, North Carolina and one to Cooke's apartment in
Winston-Salem, North Carolina to deliver cocaine.

Curley initially supplied Goodale with the cocaine for delivery to
North Carolina. But upon learning that Goodale had started using
cocaine, Curley began accompanying Goodale on deliveries to protect
his cocaine shipments.

Curley testified that he personally made six trips to North Carolina
to deliver cocaine. On one of these trips, he delivered five kilograms
of cocaine to Cooke. Ponzio's testimony generally corroborated Cur-
ley's testimony concerning the delivery of cocaine to Cooke on one
occasion.

                    2
Taking the witness stand in his own defense, Cooke testified that
he met Goodale through his involvement on the tractor pull circuit in
the Southeast. Cooke, however, denied ever buying cocaine from
Goodale. Cooke also testified that he knew Curley and Ponzio, but he
again denied ever purchasing any drugs from them.

The jury convicted Cooke of conspiracy to distribute cocaine.
Cooke filed a motion for a new trial pursuant to Fed. R. Crim. P. 33.
He claimed that the district court erred in not declaring a mistrial
because Curley allegedly gave surprising and perjurious testimony.
Secondly, he claimed that the district court erred in not granting a
new trial based upon various Brady violations. The district court
denied his motion.

At sentencing, the district court found that Cooke had given perju-
rious testimony at his trial and increased Cooke's offense level 2
points for obstruction of justice. USSG § 3C1.1. The district court
also held Cooke accountable for 15-50 kilograms of cocaine in com-
puting his base offense level pursuant to Sentencing Guideline
§ 2D1.1.

Cooke claims four assignments of error on appeal: first, he asserts
that the district court committed reversible error in refusing to grant
his motion for a mistrial or a new trial, based upon the alleged perjuri-
ous testimony of Curley; second, Cooke alleges that the district court
committed reversible error in denying his motion for a new trial based
upon the government's failure to produce certain exculpatory or
impeachment information as required by Brady v. Maryland, 373 U.S.
83 (1963); third, Cooke argues that the district court erred in enhanc-
ing his sentence for obstruction of justice; and fourth, Cooke asserts
that the trial court erred in holding him accountable for 15-50 kilo-
grams of cocaine.

II.

Cooke first claims that the district court erred in denying his
motion for a mistrial based upon the testimony of William Curley.
Cooke alleges that Curley gave perjurious testimony that incriminated
Cooke and the district court abused its discretion in not granting his
motion for a mistrial or a new trial.

                    3
A.

Curley testified at trial about various trips that he made from Flor-
ida to North Carolina to deliver cocaine. On direct examination by the
government, Curley testified that he made a total of six trips to North
Carolina and met Cooke on two of those trips. Curley made no men-
tion of cocaine being exchanged between himself and Cooke on either
of these two meetings.

On cross examination, Curley again described six trips to North
Carolina. Contrary to his direct examination, however, he described
three meetings with Cooke. During one of those meetings, Curley tes-
tified, he distributed five kilograms of cocaine to Cooke at Cooke's
residence.

On redirect examination, the government probed further into the
number of meetings with Cooke. Curley again testified that on one
occasion he distributed drugs to Cooke. The Assistant United States
Attorney then asked for a bench conference at which he informed the
district judge and Cooke's counsel that this was the first time he had
heard of the meeting with Cooke where five kilograms were
exchanged. The Assistant United States Attorney went on to explain
that Curley "has never mentioned this trip before, not to me and not
to any of the agents who were with me during the course of the inter-
views" with Curley.1

The trial judge then excused the jury and a hearing was held on
how to deal with Curley's testimony. Cooke's counsel proposed that
they be allowed to conduct a voir dire of Curley outside the jury's
presence. The trial judge denied that motion. Then, Cooke's counsel
moved that Curley's testimony be stricken as inherently incredible.
The trial judge also denied that motion. The judge decided to instruct
the jury on how to deal with inconsistent statements made by wit-
nesses and to allow Cooke to examine the investigators who con-
_________________________________________________________________
1 The Assistant United States Attorney admitted at oral argument that
this quoted statement is not entirely accurate because the attorney was
not present during all of Cooke's interviews and could not conclusively
say what Cooke may and may not have mentioned at the interviews he
did not attend.

                    4
ducted pretrial interviews with Curley. Unsatisfied, Cooke's counsel
made a motion for a mistrial which the trial judge denied. Following
his conviction, Cooke again argued this point in a Rule 33 motion for
a new trial.2

The trial continued with Cooke having the opportunity to conduct
a recross of Curley and an examination of the two investigators who
interviewed Curley. On recross, Curley maintained that he was fairly
certain that he told the investigators about the drug deal with Cooke.
During the examination of the investigators, each acknowledged that
Curley's testimony had not been consistent with what he had told
them during their various debriefings.

B.

Cooke argues that the district court abused its discretion in not
declaring a mistrial or granting a new trial because Curley's testimony
was unfairly surprising and perjurious. A new trial should be granted
for surprise and perjurious testimony when: (1) the court is reasonably
satisfied that the testimony given by a material witness is false; (2)
without the false testimony, the jury might have reached a different
conclusion; and (3) the party seeking the new trial was taken by sur-
prise by the testimony and was unable to meet it. United States v.
Wallace, 528 F.2d 863, 866 (4th Cir. 1976); United States v. Nero,
733 F.2d 1197, 1202 (7th Cir. 1984). We review a district court's
refusal to declare a mistrial or to grant a new trial based upon perjured
testimony for abuse of discretion. See United States v. Dorlouis, 107
F.3d 248, 254, 257 (4th Cir.), cert. denied, 117 S.Ct. 2525 (1997);
United States v. Arrington, 757 F.2d 1484, 1486 (4th Cir. 1985).

Cooke's argument fails because he cannot prove that Curley gave
false testimony. The district court noted that there were inconsisten-
cies in Curley's testimony but never concluded that the testimony was
_________________________________________________________________
2 Cooke wanted to put the Assistant United States Attorney on the wit-
ness stand to testify about what Curley said at the pretrial interviews. The
district court refused to allow this and correctly held that it would be suf-
ficient for Cooke to call the two government investigators as witnesses
since they attended all of the pretrial meetings and the Assistant United
States Attorney did not.

                    5
false. To the contrary, the district court acknowledged the inconsis-
tencies and addressed the situation by instructing the jury about how
to deal with inconsistent testimony by a witness.3

Cooke argues that the testimony was perjurious because it was
inconsistent with the statements given to the investigators and the
Assistant United States Attorney during debriefings before trial. Yet,
this inconsistency proves nothing more than the presence of an incon-
sistency. See United States v. Griley, 814 F.2d 967, 971 (4th Cir.
1987) (stating that "[m]ere inconsistencies in testimony by govern-
ment witnesses do not establish the government's knowing use of
false testimony"). The district court recognized the lack of proof that
Curley gave false testimony and correctly left the issue for the jury
to resolve. See United States v. Tresvant, 677 F.2d 1018, 1021 (4th
Cir. 1982) (stating that "[w]here there are conflicts in the testimony,
it is for the jury and not the appellate court to weigh the evidence and
judge the credibility of the witnesses").

Nor is it apparent that Cooke was unable to meet or counter the
alleged surprise testimony of Curley. Cooke had the opportunity to
extensively cross examine Curley about his testimony. Cooke also
called the two investigating officers as witnesses and interrogated
them about Curley's inconsistent statements. Consequently, Cooke
had ample opportunity to discredit or counter Curley's testimony.

In sum, Cooke fails to meet his burden of proving that Curley's tes-
timony was false or that he was unable to meet it at trial.

III.

Next Cooke asserts that the district court committed reversible
error in refusing to grant his motion for a new trial based upon the
failure of the United States to produce certain exculpatory informa-
tion as required by Brady v. Maryland, 373 U.S. 83 (1963).

Under Brady and its progeny, the prosecution's failure to disclose
_________________________________________________________________
3 Cooke does not challenge the district court's instruction to the jury
about inconsistent witness testimony.

                    6
"evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irre-
spective of the good faith or bad faith of the prosecution." United
States v. Ellis, 121 F.3d 908, 914 (4th Cir.) (quoting Brady, 373 U.S.
at 87), cert. denied, 118 S.Ct. 738 (1998); accord Kyles v. Whitley,
514 U.S. 419, 431 (1995); Hoke v. Netherland, 92 F.3d 1350, 1356
(4th Cir.), cert. denied, 117 S.Ct. 630 (1996). Evidence is "favorable"
not only when it would tend to exculpate the accused, but also where
it can be used to impeach government witnesses. Ellis, 121 F.3d at
914; accord United States v. Trevino, 89 F.3d 187, 189 (4th Cir.
1996); United States v. Bagley, 473 U.S. 667, 682 (1985). However,
where the prosecution fails to disclose evidence favorable to the
accused, such evidence is material "only where there exists a `reason-
able 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)); see Kyles, 514 U.S. at 434.
A "reasonable probability" of a different result is shown when the
government's failure to disclose evidence "undermines confidence in
the outcome of the trial." Ellis, 121 F.3d at 914; Kyles 514 U.S. at
434.

Cooke argues that the government withheld exculpatory evidence
consisting of motel records4 and the notes of one of the investigating
agents, Detective Lambe.5 The withholding of this evidence, he
claims, precluded his counsel from properly cross examining govern-
ment witnesses and deprived the jury of the ability to evaluate the wit-
nesses' credibility.
_________________________________________________________________
4 Cooke claims that he was not aware of the motel records until he cal-
led one of the investigators on direct examination. At that time the inves-
tigator testified that he had reviewed hotel records which did not
corroborate the testimony of Goodale, Curley, and Ponzio concerning
where they stayed during their trips to North Carolina. Cooke alleges that
the motel records were exculpatory because they were inconsistent with
the government witnesses' testimony.
5 Although Cooke received the report of one of the agents who con-
ducted interviews with Curley, Cooke asserts that he did not receive
Detective Lambe's report concerning those interviews. Cooke alleges
that Detective Lambe's report contained information different from that
of the other investigator and could have been used to impeach govern-
ment witnesses at trial.

                    7
In reviewing Cooke's motion for a new trial, the district court con-
sidered this evidence to be Brady material, but concluded that the fail-
ure to disclose it prior to trial did not undermine the jury's verdict.
The court found that based upon the totality of the circumstances, the
availability or non-availability of the information did not create a rea-
sonable probability of a different verdict by the jury.

We reject Cooke's argument that the district court abused its dis-
cretion in denying Cooke's motion for a new trial. The district court
found that the failure to disclose the motel records and Detective
Lambe's notes prior to trial was not material since the government's
failure to disclose the evidence pretrial did not undermine confidence
in the outcome of the trial. At trial the defense thoroughly cross
examined the government's witnesses and exposed the inconsisten-
cies in their testimony and the motel records and Detective Lambe's
notes. The jury had ample opportunity to observe the witnesses'
demeanors and evaluate their credibility, as shown by the inconsisten-
cies in their testimony and the motel records and Detective Lambe's
notes. In considering this matter, the district court properly concluded
that the jury had before it the inconsistencies between the government
witnesses' testimony and the undisclosed evidence. The district court
found that the requested evidence, if disclosed pretrial, would not
have made a material difference with regard to the cross examination
of the government witnesses. Accordingly, we conclude that the dis-
trict court when considering the totality of the circumstances did not
abuse its discretion in holding that failure to disclose this information
pretrial did not undermine confidence in the outcome.

IV.

We next review Cooke's claim that the trial court committed
reversible error in enhancing his sentence for obstruction of justice
pursuant to Sentencing Guideline § 3C1.1. 6 He argues first, that the
enhancement was improper in his case, second, that this enhancement
_________________________________________________________________
6 Since Cooke was sentenced on August 14, 1996, the 1995 Guidelines
apply. See United States v. Rogers, 897 F.2d 134, 138 n.9 (4th Cir. 1990)
("[T]he district court is to consider the guidelines and policy statements
of the Commission that are in effect on the date the offender is
sentenced.").

                     8
violates the intent of the Sentencing Guidelines, and third, that it is
unconstitutional in its application.

A.

Guideline § 3C1.1 provides for a two-level increase if the defen-
dant "willfully obstructed or impeded . . . the administration of justice
during the investigation, prosecution, or sentencing of the instant
offense." USSG § 3C1.1. In United States v. Dunnigan, the Supreme
Court held that upon a proper determination that the accused has com-
mitted perjury at trial, an enhancement of sentence is required by the
Sentencing Guidelines. 507 U.S. 87, 98 (1993). Moreover, commen-
tary to § 3C1.1 indicates that an enhancement is warranted when a
defendant commits perjury. USSG § 3C1.1, comment. (n.1). Perjury
is listed as one type of conduct to which this enhancement specifically
applies. Id. § 3C1.1, comment. (n.3).

To determine the elements of perjury, the Supreme Court in
Dunnigan relied upon the federal criminal perjury statute, 18 U.S.C.
§ 1621. The Court held that a witness testifying under oath or affirma-
tion violates this statute if she gives false testimony concerning a
material matter with the willful intent to provide false testimony,
rather than as a result of confusion, mistake, or faulty memory.
Dunnigan, 507 U.S. at 94.

To avoid the enhancement of sentence for every accused who testi-
fies at trial and is convicted, the Supreme Court specifically addressed
situations where defendants object to a sentence enhancement result-
ing from their trial testimony. In such situations,"[t]rial courts must
review the evidence and make independent findings necessary to
establish a willful impediment to, or obstruction of, justice, or an
attempt to do the same, under the federal definition of perjury."
Dunnigan, 507 U.S. at 95. It is preferable for a district court to
address each element of the alleged perjury in a separate and clear
finding. Nevertheless, it is also sufficient if the court makes a finding
of an obstruction of, or impediment to, justice that encompasses all
of the factual predicates for a finding of perjury. Id.

To obtain the enhancement, the government must prove by a pre-
ponderance of the evidence the elements of perjury or facts constitut-

                     9
ing an obstruction of justice. See United States v. Smith, 62 F.3d 641,
646 (4th Cir. 1995); United States v. Nelson, 6 F.3d 1049, 1054 (4th
Cir. 1993), cert. denied, 511 U.S. 1131 (1994). Whether Cooke
obstructed justice by committing perjury is a factual determination
made by the sentencing court which we review for clear error. See
United States v. Murray, 65 F.3d 1161, 1165 (4th Cir. 1995); United
States v. Brooks, 957 F.2d 1138, 1148 (4th Cir.), cert. denied, 505
U.S. 1228 (1992).

On cross examination by the Assistant United States Attorney,
Cooke testified in his own defense, and the following exchange
occurred:

          Q Did you ever buy any drugs from Dicky Goodale or Bill
          Curley or Donna Ponzio?

          A No, sir.

          Q Did you ever accept delivery of drugs from any of
          them?

          A No, sir.

          Q Did you ever give them any money for drugs?

          A No, sir.

          Q Have you told the ladies and gentlemen here everything
          you know about these fellows?

          A Yes, I have.

J.A. at 570. Contrary to Cooke's testimony, Goodale, Curley, and
Ponzio each testified that drugs were delivered to Cooke. Based upon
this conflicting testimony, the district court concluded that Cooke pro-
vided materially false information and committed perjury by denying
his participation in the drug conspiracy.

Cooke objected to this enhancement at sentencing and the district
court, in compliance with Dunnigan, made the requisite findings

                       10
regarding the propriety of the enhancement for obstruction of justice.
The record reflects, and the district court properly found, that Cooke
wilfully gave false testimony concerning a material matter during his
trial, and that this false testimony was not made as a result of confu-
sion or mistake. The evidence which the court accepted as credible
indicated that there were transactions in which money was transferred
by Cooke to either Goodale or Curley. In exchange, Cooke accepted
drug deliveries from either Goodale or Curley. Ponzio witnessed the
exchange of money and drugs between Cooke and Curley on one
occasion. These factual findings are supported by the record and are
not clearly erroneous. They point directly to the conclusion that
Cooke committed perjury. Thus, we conclude that the district court
did not err in enhancing Cooke's sentence for obstruction of justice.

B.

Next, Cooke challenges his obstruction of justice enhancement on
policy grounds. Cooke asserts that Congress intended for the Sentenc-
ing Guidelines to bring uniformity in sentencing by narrowing the
wide disparity in sentences imposed for similar criminal offenses
committed by similar offenders. See USSG Ch.1, Pt.A, intro. com-
ment. He claims that application of this enhancement raised his
offense level from 34 to 36, which increased his minimum sentence
from 151 months to 188 months, given his Criminal History Category
of I. This is a 37 month increase based on obstruction of justice. He
compares this 37 month increase to that of a hypothetical offender
with the same criminal history who commits perjury in a fraud trial
involving $50,000, but only receives an increase in his minimum sen-
tence of 4 months for the act of perjury.

Cooke's argument fails under its own logic. As he argues, the Sen-
tencing Guidelines call for similar sentences for similar offenses com-
mitted by similar offenders. See USSG Ch.1, Pt.A, intro. comment.
Cooke fails to appreciate, however, that he is not similar to an
offender who commits perjury in a fraud trial involving $50,000. That
offender has an underlying offense level based on fraud involving
$50,000 while Cooke has an underlying offense level based upon con-
spiracy to possess and distribute cocaine. This fact alone makes
Cooke dissimilar from his hypothetical fraud offender, and thus, he
should receive a different sentence.

                    11
C.

Lastly, Cooke claims that an enhancement for perjury under
§ 3C1.1 is unconstitutional, in violation of the Equal Protection
Clause. Similar to his policy argument made above, Cook claims that
application of § 3C1.1 results in similarly situated defendants receiv-
ing a wide range of sentences for the crime of perjury. His argument
is that a two-point enhancement for perjury will increase the sentence
of an offender with a high base offense level more than it will
increase the sentence of an offender with a low base offense level.

An equal protection constitutional claim may be raised when the
punishment one receives bears no relation to the crime committed.
See McCleskey v. Kemp, 481 U.S. 279, 306-08 (1987). Here, how-
ever, the method of punishment for obstruction of justice bears a sig-
nificant relation to the crime. As the Ninth Circuit found in addressing
this identical issue, "it seems entirely rational to punish perjury more
severely when the underlying crime out of which the defendant is try-
ing to lie his way is more serious." United States v. Rubio-Topete, 999
F.2d 1334, 1341 (9th Cir. 1993). Such a punishment scheme is ratio-
nal and under the facts of this case, not unreasonably excessive.
Accordingly, we hold that the enhancement given to Cooke for
obstruction of justice based on his perjury is not unconstitutional
under the Equal Protection Clause.

V.

Finally, we address whether the trial court erred for holding Cooke
accountable for 15-50 kilograms of cocaine in computing his base
offense level. Our review is governed by two principles. United States
v. Goff, 907 F.2d 1441, 1444 (4th Cir. 1990). First, it is incumbent
upon the government to prove the quantity of drugs involved by a pre-
ponderance of the evidence. Id.; United States v. Powell, 886 F.2d 81,
85 (4th Cir. 1989), cert. denied, 493 U.S. 1084 (1990). Second, since
calculation of the quantity of drugs is a factual determination, the
finding of the district court will be upheld unless clearly erroneous.
Goff, 907 F.2d at 1444; United States v. Daughtrey, 874 F.2d 213,
217 (4th Cir. 1989).

                    12
Cooke argues that the district court incorrectly based its calculation
of his base offense level upon the testimony of unreliable witnesses.
Specifically, he asserts that the testimony of Goodale, Curley, and
Ponzio was inherently unreliable because the evidence showed that
they were drug addicts with inaccurate memories. Cooke maintains
that at sentencing, the district court failed to make findings that their
testimony had the requisite indicia of reliability and erroneously
relied on its previous ruling that the witnesses' testimony was not
inherently unreliable.7 To support his argument, Cooke relies on cases
from the Third and Eighth Circuits which instruct district courts to
receive with caution and scrutinize the testimony of drug addict-
informants against the "sufficient indicia of reliability" standard.
United States v. Miele, 989 F.2d 659, 667-668 (3rd Cir. 1993); see
United States v. Simmons, 964 F.2d 763, 776 (8th Cir.), cert. denied,
506 U.S. 1011 (1992).

In this Circuit there is generally no requirement that district courts
make separate findings of "sufficient indicia of reliability" at sentenc-
ing hearings regarding the testimony of drug addict-informants. All a
district court must do is make factual findings (under the preponder-
ance of the evidence standard) concerning the evidence that is pres-
ented before it. Implicit in those factual findings is a finding of the
reliability of the evidence upon which the findings are based.

The district court did not commit clear error in its factual findings
concerning the amount of drugs attributable to Cooke. The same
judge who sentenced Cooke presided over his trial. At the sentencing
hearing, the judge and counsel reviewed the trial transcript. The judge
then made specific factual findings concerning which drug quantities
had been proven by a preponderance of the evidence to be attributable
to Cooke. The court also excluded from this calculation those
amounts of drugs that had not been proven by a preponderance of the
evidence to be attributable to Cooke. Based on our review of the evi-
dence in the case, the district court did not commit clear error in this
assessment.
_________________________________________________________________
7 In denying Cooke's Motion for a New Trial prior to sentencing, the
district court concluded that the testimony of Goodale, Curley, and Pon-
zio was not inherently unreliable. J.A. at 777.

                     13
VI.

Since none of Cooke's challenges merit reversal of his conviction
or sentence, we affirm.

AFFIRMED

                    14
