UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4826

MONA LISA GAFFNEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-97-179)

Submitted: March 16, 1999

Decided: August 5, 1999

Before ERVIN, NIEMEYER, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Chris Asher, UNIVERSAL LAW CENTER, Washington, D.C., for
Appellant. Helen F. Fahey, United States Attorney, Justin W. Wil-
liams, Assistant United States Attorney, Alexandria, Virginia, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

A jury convicted Mona Lisa Gaffney on all counts of a seven-count
indictment charging conspiracy to distribute and possess with intent
to distribute heroin and hydromorphone, 21 U.S.C.§ 846 (1994), con-
spiracy to tamper with witnesses, violate the Travel Act, demand and
accept bribes, and introduce contraband into a penal institution, 18
U.S.C. § 371 (1994), witness tampering, 18 U.S.C. § 1512(b) (1994),
distribution of heroin, 21 U.S.C. § 841(a)(1) (1994), distribution of
hydromorphone, 21 U.S.C. § 841(a)(1) (1994), and possession with
intent to distribute heroin, 21 U.S.C. § 841(a)(1) (1994) (two counts).
Gaffney was subsequently sentenced to 210 months' imprisonment.
On appeal, Gaffney challenges various evidentiary rulings made by
the district court during trial and the sufficiency of the evidence to
sustain her convictions. She further argues that the trial court failed
to properly instruct the jury and that her sentence is invalid or exces-
sive. Finding no reversible error, we affirm.

The evidence at trial disclosed that Mona Lisa Gaffney (Mona
Lisa) was involved in a drug trafficking organization at Lorton Refor-
matory, a maximum security facility, in Lorton, Virginia, where her
brother, Keith Eugene Gaffney (Keith), was incarcerated. Keith was
the kingpin of a drug organization that consisted of a network of
inmates and corrupt correctional officers. The Government's evidence
included testimony from several correctional officers who admitted
that they served as conduits for heroin coming into the maximum
security prison and for money from the drug sales going out of the
prison through Mona Lisa. The Government also introduced testi-
mony from inmates who, as participants in Keith's drug activities, had
contact with Mona Lisa for the purpose of receiving drugs from her
during visits.

Robert Tyrone Green, one of the former correctional officers,
detailed his arrangement with Keith Gaffney. He testified that Keith
would inform him of the arrival of a certain visitor carrying "sand-
wiches," which were marked by an "X" on the outside. These sand-
wiches contained hidden balloons of heroin. When the visitor arrived
at the checkpoint, Green or another co-conspirator officer would

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accept the package into the facility and deliver it to Keith. Keith sub-
sequently introduced Green to his sister, Mona Lisa. On this occasion,
Green observed her give a package to Keith. Keith and Green agreed
that if Mona Lisa was unable to bring the drugs to Lorton, Green
would meet Mona Lisa at a local shopping center. Green testified that
during these meetings, Mona Lisa handed him packages containing at
least four blue balloons containing raw heroin. Upon delivery to
Keith, Green observed Keith open the packages and"cut" the heroin.
Green further testified that he was also responsible for delivering
cash, proceeds from the drug sales, to Mona Lisa.

Another former correctional officer who participated in the con-
spiracy at the time, Quincy Ford, also testified at trial as to his role
in the conspiracy and related dealings with Mona Lisa. He too stated
that he met Mona Lisa on several occasions at the shopping center to
receive packages of drugs from her to give to Keith or to give her
cash from Keith. Both Ford and Green testified that sometimes they
traveled together to meet Mona Lisa. Herman Hicks, another former
correctional officer and co-conspirator, positively identified Mona
Lisa at trial as the woman Green and Ford met with at night at the
shopping center.

Tony Patterson, a fellow inmate of Keith's at Lorton, testified that
Keith taught him about various aspects of the "business," including
how to cut and package the heroin. During one of the visits, Keith
introduced Patterson to Mona Lisa, who was subsequently placed on
Patterson's visitor list. As a result, Patterson met with Mona Lisa dur-
ing regular weekly visits, sometimes two or three times a week, over
an eight-month period. As a matter of routine, Mona Lisa delivered
drugs to him during these meetings and received cash proceeds from
the drug sales. Patterson testified that during this period he met with
Mona Lisa at least thirty times, and each time Mona Lisa gave him
balloons of uncut heroin.

Patterson testified regarding a raid he experienced while incarcer-
ated with Keith at Lorton's medium security facility. Patterson stated
that one day prior to the raid, Mona Lisa passed him two balloons of
heroin during a visit. This formed the basis for the count charging
Mona Lisa with distribution of heroin. Patterson processed some of
this heroin, cutting it with hydromorphone (Dilaudid), for distribu-

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tion, placing it in nineteen individual bags and then in a medicine bag.
During the raid, Patterson was caught in possession of the bag.
Because the hydromorphone had overpowered the heroin, test results
revealed the substance seized was hydromorphone. Mona Lisa was
thus charged in another count of aiding and abetting in the distribu-
tion of hydromorphone. The day after the raid, during a visit, Patter-
son passed back to Mona Lisa the remains of two balloons of heroin
that had not been seized by officials. Her receipt and possession of the
balloons constituted the basis for a charge of possession with intent
to distribute heroin. The week after Patterson was returned to maxi-
mum security, Mona Lisa visited Patterson and returned the balloons
of heroin he had passed back to her after the raid the week before.
Mona Lisa's possession of the heroin at this time formed the basis for
a second charge of possession with intent to distribute heroin.

In support of the witness tampering charges, the Government intro-
duced the testimony of Patrice Jackson, a/k/a "Peaches," who testified
under a formal grant of immunity. She testified that she became
acquainted with Keith when, at the age of fifteen, she accompanied
his daughter, Keesha Morris, to Lorton to visit him. She testified that
she assisted Keith in his operation by smuggling drugs into the facil-
ity. She also stated that she set up three-way calls between Keith,
Mona Lisa, and other co-conspirators.

After Keith was indicted on federal charges for his extensive drug
activities, Jackson informed Mona Lisa that she had been subpoenaed
to appear at trial. Mona Lisa asked Jackson whether she intended to
go. When Jackson responded that she was going to go to court, Mona
Lisa replied, "Bad choice." She further questioned Jackson as to what
she told the authorities and whether it could "hurt" Keith. This con-
versation preceded a subsequent meeting between Jackson and Mor-
ris. According to Jackson, at this time, Morris threatened: "Don't go
to court . . . you know what happens to snitchers." Jackson maintained
that she did not testify at Keith's trial because she was too scared to
testify; she felt threatened by both Mona Lisa and Morris. She further
indicated that her conversation with Mona Lisa changed her mind
about testifying.

At trial, Mona Lisa testified in her own defense. She denied any
participation in drug trafficking with Keith, correctional officers, or

                     4
other inmates. Although she admitted having a conversation with
Jackson prior to Keith's trial, she denied threatening her or persuad-
ing her in any way not to testify at his trial. The jury convicted Mona
Lisa on all seven counts. She was subsequently sentenced to 210
months' imprisonment. This appeal followed.

On appeal, Mona Lisa first challenges various evidentiary rulings
made by the trial court during the course of her trial. We review the
district court's evidentiary rulings for an abuse of discretion. See
United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997). Because
Mona Lisa raises these objections for the first time on appeal, we
review for plain error. See Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 732 (1993).

Mona Lisa initially claims that the court improperly admitted the
testimony of co-conspirators Green, Ford, and Hicks whose post
arrest statements were hearsay which did not fall under the exception
of Fed. R. Evid. 801(d)(2)(E) because at the time of their statements
their participation in the conspiracy had ceased. Hearsay is defined as
a "statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter
asserted." Fed. R. Evid. 801(c). Rule 801(d)(2)(E) provides that "a
statement by a coconspirator of a party during the course and in fur-
therance of the conspiracy" is not hearsay. In this case, co-
conspirators Green, Ford, and Hicks testified directly as to their
involvement in the drug ring and their first-hand interaction with
Mona Lisa in furtherance of that criminal enterprise. Our review of
the challenged testimony reveals that it either fell within the co-
conspirator exception or was the witnesses' direct accounts of their
activities. Accordingly, we reject Mona Lisa's argument that their tes-
timony was inadmissable.

Mona Lisa next claims that the trial court committed prejudicial
error by admitting into evidence her co-conspirators' convictions.
Specifically, she posits that the court should have excluded, sua
sponte, the introduction of Keith's conviction in the Government's
opening argument. She further maintains that the Government should
not have been permitted to elicit from the former correctional officers
that they had entered guilty pleas to the conspiracy charges. We find
that the Government was well within its right to elicit from the former

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officers the fact that they pled guilty, see United States v. Henderson,
717 F.2d 135, 137-38 (4th Cir. 1983), and our review of the record
reveals no prejudicial error due to the Government's mentioning of
Keith's conviction only during its opening statement.

Mona Lisa next challenges the sufficiency of the evidence to sup-
port her convictions. The jury's verdict "must be sustained if there is
substantial evidence, taking the view most favorable to the Govern-
ment, to support it." Glasser v. United States, 315 U.S. 60, 80 (1942).
Thus, we may reverse a jury verdict only if the record demonstrates
a lack of evidence from which a jury could find guilt beyond a rea-
sonable doubt. See United States v. Lowe, 65 F.3d 1137, 1142 (4th
Cir. 1995). In resolving issues of substantial evidence, this court does
not weigh or review witness credibility. See United States v.
Saunders, 886 F.2d 56, 60 (4th Cir. 1989).

We find ample evidence in the record to support the jury's convic-
tion of Mona Lisa on all charges. To prove a drug conspiracy, the
prosecution must show that: (1) an agreement to possess [the drugs]
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. See United States v.
Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc), cert. denied, 117
S. Ct. 1087 (U.S. Feb. 24, 1997) (No. 96-6868). Mona Lisa's crucial
role in the drug conspiracy led by her brother is detailed throughout
the record. We find that there was ample evidence to support the
jury's finding that Mona Lisa's participation was knowing and volun-
tary. Furthermore, the detailed testimony of Patterson and the other
co-conspirators further support her conviction for possession of her-
oin and for aiding and abetting its distribution within Lorton.

With respect to her conviction for witness tampering, i.e., attempt-
ing to prevent Patrice Jackson from testifying at Keith's trial, it was
incumbent upon the Government to prove that Mona Lisa "knowingly
use[d] intimidation or physical force, threaten[ed] or corruptly per-
suade[d] another person, . . . with intent to (1) influence, delay, or
prevent the testimony of any person in an official proceeding." 18
U.S.C. § 1512(b) (1994). Given Jackson's unequivocal statement that
she felt threatened by Mona Lisa after their conversation and that she
decided at that point not to testify, we find sufficient evidence from

                     6
which the jury could find Mona Lisa guilty beyond a reasonable
doubt.

Last, Mona Lisa avers that the district court erred in sentencing her
based on a factual determination that she was responsible for three to
ten kilograms of heroin during the conspiracy. Factual determinations
at sentencing will not be disturbed unless they are clearly erroneous.
See United States v. Self, 132 F.3d 1039, 1041 (4th Cir. 1997), cert.
denied, 118 S. Ct. 1573 (U.S. Apr. 27, 1998) (No. 97-8510). In the
presentence report, the probation officer calculated that, based on Pat-
terson's testimony alone, Mona Lisa was responsible for 16.3 kilo-
grams of heroin. She derived this amount based on Patterson's
account that Mona Lisa usually gave him at least two balloons per
visit, visiting him three times a week over an eight-month period.
Each visit produced six ounces of cut heroin, and thus, the eight-
month period would result in Mona Lisa's delivering 16.3 kilograms
of heroin. This figure did not take into account Mona Lisa's dealing
with Green and Ford.

Despite the probation officer's finding that Mona Lisa was
accountable for over sixteen kilograms and the Government's argu-
ment that she was accountable for heroin in excess of ten kilograms,
Mona Lisa was sentenced based only on her accountability for three
to ten kilograms of heroin. Given the leniency of the sentencing court,
and Mona Lisa's inability to show that the probation officer's infor-
mation was either inaccurate or unreliable, see United States v. Terry,
916 F.2d 157, 162 (4th Cir. 1990), we find the sentencing court's
determinations to be well-supported and find no reversible error in
sentencing.

Accordingly, we affirm Mona Lisa's convictions and sentences.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
oral argument would not aid the decisional process.

AFFIRMED

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