UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 98-4506

DOUGLAS W. PLEASANTS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-96-21-F)

Submitted: April 30, 1999

Decided: June 18, 1999

Before MURNAGHAN and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Joseph E. Zeszotarski, Jr., POYNER & SPRUILL, L.L.P., Raleigh,
North Carolina, for Appellant. Janice McKenzie Cole, United States
Attorney, Anne M. Hayes, Assistant United States Attorney, Christine
Witcover Dean, Assistant United States Attorney, Raleigh, North Car-
olina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted Douglas Pleasants of conspiracy to possess with
intent to distribute cocaine and marijuana. On appeal, Pleasants
alleges that the district court erred: (1) in its answer to the jury's
request for a definition of "reasonable doubt;" (2) by refusing to admit
a letter written by a Government witness into evidence; (3) by allow-
ing the Government to read a witness' prior testimony into evidence;
and (4) in its calculation of the amount of drugs attributable to him.
Pleasants also alleges that the Government violated the federal brib-
ery statute, 18 U.S.C. § 201 (1994), when it used the testimony of
cooperating witnesses against him. Finding no reversible error, we
affirm.

Pleasants, his brother, and his brother's son operated a major drug
trafficking ring in North Carolina for approximately fifteen years.
Pleasants' nephew pled guilty prior to trial, while Pleasants and his
brother proceeded to trial and were tried and convicted together. At
trial, a Government witness, James Clayton Bell ("Bell"), testified
that he and his drug partner from Florida made numerous trips into
South Carolina in the early 1980's to sell drugs. Bell stated that he
and his partner sold drugs to Douglas on at least five occasions.

Shortly after trial, another Government witness, Lewis Anthony
Dorsey ("Dorsey"), wrote a letter to the prosecutor asserting that Bell
gave false testimony because he never met Pleasants. Specifically,
Dorsey claimed that Bell "purchased" his testimony from another
inmate in the hope that he (Bell) would receive a more lenient sentence.1
Both Pleasants and his brother filed motions for a new trial. The dis-
trict court granted Pleasants' motion but denied his brother's. All
_________________________________________________________________
1 Bell has never recanted his testimony and continues to assert that he
was telling the truth.

                    2
three defendants appealed, and the Government appealed the court's
grant of a new trial to Pleasants. We affirmed the convictions and sen-
tences for Pleasants' brother and nephew and the district court's order
granting Pleasants' motion for a new trial.2

After approximately three hours of deliberation, the jury in the sec-
ond trial sent a note to the district judge requesting a definition of
"reasonable doubt." After consulting with the attorneys for both par-
ties, the judge advised the jury that "reasonable doubt must be deter-
mined by the jury in light of your common experience and common
sense." Pleasants alleges that use of the phrase"common experience"
lowered the Government's burden of proof because most people
believe that the majority of defendants are found guilty.

The decision to give, or not to give a jury instruction and the con-
tent of that instruction are reviewed for abuse of discretion, and we
find no such abuse here. See United States v. Burgos, 55 F.3d 933,
935 (4th Cir. 1995). This court has consistently held that district
courts should not attempt to define the term "reasonable doubt." See
United States v. Williams, 152 F.3d 294, 298 (4th Cir. 1998).
Although there may be a possible exception where the jury expressly
asks for a definition, attempts to define "reasonable doubt" should
still be avoided. Id. We find that the district judge here properly rec-
ognized circuit precedent, and his instruction, when viewed in the
context of the instructions as a whole, was not prejudicially mislead-
ing or confusing. See United States v. Reives , 15 F.3d 42, 45 (4th Cir.
1994).

We review the district court's evidentiary decisions for abuse of
discretion and find none. See United States v. Hassan El, 5 F.3d 726,
731 (4th Cir. 1993). To the extent that Pleasants challenges the dis-
trict court's refusal to admit the letter to impeach Dorsey, the issue
is moot because Dorsey did not deny writing the letter, nor did he
deny the contents of the letter. Therefore, there was nothing to
impeach. To the extent that Pleasants challenges the refusal to admit
the letter as substantive evidence of bias, any error was harmless. The
district court allowed defense counsel to question both Bell and Dor-
_________________________________________________________________
2 See United States v. Pleasants , Nos. 96-4795/4796/4818 (4th Cir.
Dec. 8, 1997) (unpublished).

                    3
sey concerning the contents of the letter and to explore the issue of
bias by eliciting testimony that both witnesses were eager to receive
a reduction in their sentences by testifying.

Likewise, the district court did not abuse its discretion by allowing
the Government to read the prior testimony of a witness into evi-
dence. Although the witness testified at Pleasants' first trial, he
refused to testify at the second, and the district court properly found
him "unavailable" pursuant to Fed. R. Evid. 804(a)(2). We find Pleas-
ants' conclusory allegation that the Government created the witness'
unavailability to be unsupported by the record. We further reject
Pleasants' claim that the reading of the witness' prior testimony
deprived him of the opportunity to cross-examine the witness. Pleas-
ants' attorney's cross-examination in the prior proceeding was read
into evidence, and we find that this satisfied the requirements of Rule
804(b)(1).

The district court's factual determination concerning the amount of
drugs attributable to Pleasants should be upheld absent clear error.3
See United States v. Lamarr, 75 F.3d 964, 972 (4th Cir. 1996). In
addition, Pleasants bore the burden of showing that the drug amounts
contained in the presentence report were inaccurate, and his conclu-
sory allegations failed to satisfy this burden. See United States v.
Terry, 916 F.2d 157, 162 (4th Cir. 1990) (mere objections alone are
insufficient). As a member of the conspiracy, Pleasants was account-
able for all of the drugs reasonably foreseeable to him. See United
States v. Irvin, 2 F.3d 72, 78 (4th Cir. 1993); United States v. Gilliam,
987 F.2d 1009, 1012-13 (4th Cir. 1993). Since the amount of drugs
seized (none) did not reflect the scale of the offense, the district court
was allowed to estimate the amount attributable to Pleasants. See
United States v. Kennedy, 32 F.3d 876, 887 (4th Cir. 1994).

The evidence in this case showed that the Pleasants family operated
a major drug distribution conspiracy over a period of approximately
fifteen years. Several witnesses provided testimony and information
concerning the amount of drugs they purchased from the Pleasants.
_________________________________________________________________
3 The district court held Pleasants liable for all of the drugs distributed
to the four "customers" he regularly delivered to, even though he did not
personally make all of the deliveries.

                     4
Moreover, there was significant evidence showing that Pleasants was
actively involved in the conspiracy during the charged time frame,
even though he did not make any deliveries to the"customers" in
question until after 1990. The close family relationship among the pri-
mary conspirators certainly could suggest that Pleasants was inti-
mately aware of the conspiracy and was a trusted participant from the
beginning of the enterprise.

Pleasants cites United States v. Singleton, 144 F.3d 1343 (10th Cir.
1998), for the proposition that the Government violated the federal
bribery statute by using the testimony of cooperating witnesses. Every
circuit which has addressed this issue has rejected it, including the
Tenth Circuit in a recent en banc decision. See United States v.
Singleton, 165 F.3d 1297 (10th Cir. 1999), petition for cert. filed,
(Mar. 31, 1999) (No. 98-8758).

We therefore affirm Pleasants' conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

                    5
