UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                       No. 94-5941
WILLIE BRUEN, a/k/a Junior, a/k/a
Willie Bruenton,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
N. Carlton Tilley, Jr., District Judge.
(CR-93-281)

Argued: November 1, 1995

Decided: April 15, 1996

Before MURNAGHAN and MOTZ, Circuit Judges, and YOUNG,
Senior United States District Judge for the District of Maryland,
sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: William Stimson Trivett, Assistant Federal Public
Defender, Greensboro, North Carolina, for Appellant. Michael Fran-
cis Joseph, Assistant United States Attorney, Greensboro, North Car-
olina, for Appellee. ON BRIEF: William E. Martin, Federal Public
Defender, Greensboro, North Carolina, for Appellant. Walter C. Hol-
ton, Jr., United States Attorney, Robert M. Hamilton, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Willie Bruen appeals from his convictions for distribution of
cocaine and money-laundering. Finding no reversible error, we
affirm.

I.

Willie Bruen and nine codefendants were named in a fourteen
count indictment filed on December 20, 1993 in the United States
District Court for the Middle District of North Carolina. Count One
charged all defendants with conspiring to possess with the intent to
distribute, and with actual distribution of, cocaine and marihuana in
violation of 21 U.S.C. §§ 841 and 846. Count Two charged Bruen and
three others with a money laundering conspiracy in violation of 18
U.S.C. §§ 1956 and 1957.

Bruen pled not guilty to both counts. At the first trial in March
1994, the jury was unable to reach a unanimous verdict as to Bruen
and the court declared a mistrial. Prior to the second trial in July
1994, the district court denied Bruen's motions to exclude a firearm
and $980 found during a search of his home, and to exclude testimony
regarding a sale of crack cocaine from his home. Following the sec-
ond trial, the jury returned verdicts of guilty and the court sentenced
Bruen to one hundred seventy months imprisonment, sixty months
supervised release, and a special assessment of $100.00.

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II.

Bruen now claims the district court erred in denying his motions
to exclude evidence. We review the court's evidentiary rulings under
the abuse of discretion standard. United States v. Anjou, 16 F.3d 604,
610 (4th Cir. 1994), cert. denied, 114 S.Ct. 2754 (1994).

A.

During a search of Bruen's home on November 20, 1992, police
seized a coffee grinder containing cocaine residue, lactose, small plas-
tic bags, two small pieces of crack cocaine found in a car Bruen had
driven shortly before the search, $980 taken from a lock box under
Bruen's bed, a loaded firearm found under Bruen's mattress, a small
digital scale with traces of cocaine, a vial that showed the presence
of crack cocaine, a plastic bag containing 12.08 grams of cocaine, and
a set of triple beam scales. Bruen was home when the search warrant
was executed.

Bruen argues that the firearm and cash were not relevant or, in the
alternative, were prejudicial. As we have recognized before, firearms
are the "tools of the trade" for drug dealers. See United States v.
White, 875 F.2d 427, 433 (4th Cir. 1989). Cash is also an important
part of the drug business. The firearm and cash were located in prox-
imity to traces of cocaine and implements used to dilute, weigh and
package cocaine. Bruen's attempts to explain his possession of these
items do not prevent the jury from weighing the evidentiary value of
these items. Accordingly, the district court did not abuse its discretion
in finding that the firearm and cash were relevant to the charges fac-
ing Bruen and there was no prejudicial error in admitting this evi-
dence.

B.

Officer Connie Southern of the Winston-Salem Police Department
testified that during an undercover assignment on November 5, 1992
she met Paul Farabee, transported him to the vicinity of Bruen's
home, and purchased crack cocaine from him. Officer Barry Rountree
testified that he observed Farabee walk from Southern's vehicle to

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Bruen's residence at 921 Sprague Street, knock on the door, and enter
the house. Rountree did not see who opened the door. Five minutes
later, Farabee left the house and returned to Southern's car. Wilma
Bruen, the wife of Willie Bruen, testified that her husband was in
New York on November 5, 1992.

Bruen argues that evidence of a crack cocaine sale is not relevant
to the charge of conspiracy to distribute cocaine. Crack cocaine and
cocaine may be treated differently for purposes of sentencing, but
they are considered the same controlled substance for other purposes.
See 21 U.S.C. § 812; United States v. Deisch, 20 F.3d 139, 150-51
(5th Cir. 1994). Therefore, a crack sale out of Bruen's home is rele-
vant to the charge that he distributed that same controlled substance.

Bruen next attempts to characterize the crack sale as "character evi-
dence" which should have been excluded under Rule 404(b) prohibit-
ing evidence "to prove the character of a person in order to show that
he acted in conformity therewith." Fed. R. Evid. 404(b). Bruen's reli-
ance on this rule is mistaken. The crack sale was not offered as char-
acter evidence and falls under several well-known exceptions to the
rule, as it is relevant to Bruen's opportunity to sell crack, knowledge
of crack sales in his home, and access to cocaine. See Fed. R. Evid.
404(b).

Accordingly, the district court did not abuse its discretion in find-
ing that the crack sale was relevant to the charges facing Bruen.

III.

Bruen also contends there was insufficient evidence to support his
convictions for conspiracy to possess cocaine with the intent to dis-
tribute and with actual distribution of cocaine, and for conspiracy to
commit money laundering. We review the jury's verdicts to see if
they are supported by substantial evidence, taking the view most
favorable to the government. Glasser v. United States, 315 U.S. 60,
80 (1942), reh'g denied, 315 U.S. 827 (1942).

A.

The elements of the crime of conspiring to distribute cocaine are
(1) that a conspiracy existed, (2) that the defendant had knowledge of

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the conspiracy, and (3) that defendant willingly participated in the
conspiracy. United States v. Bell, 954 F.2d 232, 236 (4th Cir. 1992).

The government offered the testimony of several witnesses in addi-
tion to evidence of the crack sale and items seized during the raid of
Bruen's home that showed it to be a place where cocaine was diluted,
weighed, packaged, stored, and distributed.

James Benjamin testified that he assisted Melvin Sanders in setting
up a tire store and gas station, which remained in Benjamin's name
even though Sanders was the owner and provided cash to run the
operation. Bruen began working for Sanders at the tire store in
December, 1991. Benjamin testified that he stored cocaine for Sand-
ers and that Bruen picked up a foil-wrapped package containing
cocaine on one occasion from Benjamin's house. Benjamin had not
opened the package.

Nathan Brown testified that he obtained a total of 10 to 12 kilo-
grams of cocaine from Sanders, some of which was received from the
tire shop. Brown also testified that he obtained cocaine from Bruen
at the tire shop in October, 1992. At the second trial Brown testified
he received one kilogram.

Construed in a light most favorable to the government, the testi-
mony of Brown and Benjamin, the testimony of Southern and Roun-
tree regarding the crack sale, and the cocaine residue and drug selling
equipment found at Bruen's home constituted substantial evidence for
a jury to infer Bruen knowingly and voluntarily participated in a con-
spiracy with Sanders and others to distribute cocaine.

B.

The elements of the crime of money laundering are (1) that the
defendant knowingly used money derived from cocaine sales (2) to
conduct a financial transaction (3) which was designed to disguise or
conceal the source, ownership, or control of the money. United States
v. Baker, 985 F.2d 1248, 1252 (4th Cir. 1993), cert. denied, 114 S.Ct.
682 (1994).

                    5
Bruen admits that Sanders drove him to the North Carolina Depart-
ment of Motor Vehicles, where he obtained a driver's license in the
name of Willie Bruenton.

H.C. Aldridge, the district supervisor for the North Carolina Alco-
hol Law Enforcement office in Winston-Salem, testified that his
office received an application for a liquor license for a Studio 54 in
Winston-Salem from a Willie Bruenton. Bruen admitted that he had
applied for the license on the behalf of Sanders, and that he used the
name Bruenton because this was the name on his North Carolina driv-
er's license.

IRS Special Agent Dan Guerrini testified that Sanders made cash
purchases of $323,000 in 1991 and $135,000 in 1992, but that Sand-
ers had not filed tax returns and did not have a legitimate source of
income after 1989. In addition, Guerrini searched Sanders' New York
home and found records relating to Studio 54, including a lease agree-
ment for the club property and receipts totaling $60,000 for rental and
purchase payments on the property, both in the name of Willie Bruen-
ton. At the time, Bruen worked in Sanders' tire store and also earned
$700 per month as a security guard for Studio 54.

Construed in the light most favorable to the government, the testi-
mony of Guerrini and Aldridge, Bruen's transactions on behalf of
Sanders using a false name, and Bruen's involvement in cocaine dis-
tribution constitute substantial evidence for a jury to infer that Bruen
was trying to conceal the proceeds of cocaine sales.

IV.

Bruen also claims that the district court erred in calculating the
amount of drugs attributed to Bruen. Sentencing guideline application
issues are reviewed under a "due deference" standard of review,
whereby a primarily factual application approaches the clearly errone-
ous standard of review, and legal application is reviewed de novo.
United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). At
sentencing a court must rely on evidence that has a sufficient indicia
of reliability to support its probable accuracy. United States v.
Bowman, 926 F.2d 380 (4th Cir. 1991).

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The district court attributed 11 kilograms of cocaine to Bruen based
on the testimony of Lewis Gibbs. This is a factual determination
reviewed under the clearly erroneous standard. Although Gibbs is
allegedly addicted to crack and at times produced conflicting testi-
mony, the district court noted that his testimony was partly corrobo-
rated by police surveillance, wiretaps of Sanders' phone, items seized
in the search of Bruen's home, and the testimony of Brown and Ben-
jamin. Based on the totality of the evidence, the court determined that
Gibbs' testimony was more likely true than not true. The district
court's assessment of the credibility of Gibbs' testimony was not
clearly erroneous, and Bruen's sentence was proper.

V.

For the reasons set forth above, Bruen's conviction is

AFFIRMED.

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