UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 95-5305

RANDEL WILLIAMS,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Charles E. Simons, Jr., Senior District Judge.
(CR-94-35)

Argued: October 31, 1996

Decided: March 4, 1997

Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge, and
BUTZNER, Senior Circuit Judge.

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Affirmed in part, vacated in part, and remanded for resentencing by
unpublished per curiam opinion.

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COUNSEL

ARGUED: John Stuart Bruce, Deputy Federal Public Defender,
Greensboro, North Carolina, for Appellant. Robert James Conrad, Jr.,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee. ON BRIEF: William E. Martin, Federal Public Defender,
Greensboro, North Carolina, for Appellant. Mark T. Calloway, United
States Attorney, Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Randel Williams was convicted of possession with the intent to dis-
tribute marijuana and cocaine base and with conspiracy to possess
with the intent to distribute marijuana and cocaine base under 21
U.S.C.A. §§ 841 and 846 (1994). He raises numerous issues on
appeal. We affirm the rulings of the district court relating to Wil-
liams' conviction and the amount of drugs attributable to him at sen-
tencing, but we vacate the portion of his sentencing relating to the
fine and restitution imposed by the district court because the schedule
of payment was impermissibly delegated to the probation officer.

I

Williams, Alton Fearon, and Diane Branch lived together in a small
motel room in Hendersonville, North Carolina. Fearon and Branch
rented the room, and Williams moved in with them shortly after he
was released from prison. At 11 p.m. on March 13, 1993, Fearon
asked Branch to drive Williams and him to a wooded field just out-
side Brown's Labor Camp on Route 25. The labor camp was an area
notorious for drug trafficking that had recently been shut down by the
United States Marshal pursuant to a government investigation. Branch
came back to pick up Williams and Fearon close to midnight, but she
had to pull off to the side of the road and wait briefly for them to
return to her car.

Henderson County Sheriff's Deputy Juan Hernandez saw Branch's
vehicle sitting off the side of the highway with its lights turned off.
Hernandez thought that the car might be disabled and that its occu-
pants might need roadside assistance. When he pulled his patrol car
alongside the parked car to offer assistance, the parked car's lights
came on. Hernandez made eye contact with the driver, Diane Branch,
but she quickly drove away. Hernandez followed the car for about

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three-quarters of a mile. He observed an unusual amount of activity
among the passengers inside and saw the car swerve off of the high-
way onto the gravel shoulder. He initiated a traffic stop to ascertain
whether the driver was impaired.

Hernandez approached the vehicle and began to ask Branch a series
of routine questions. He smelled marijuana in the car and saw a
brown bag containing green vegetation that he believed was mari-
juana. He also recognized two of the passengers, Fearon and Wil-
liams, as former residents of Brown's Labor Camp. Hernandez
arrested and searched the three suspects. He found a kitchen knife on
Fearon and crack cocaine on Williams.

Police detectives searched the car Branch had been driving and
found 5.13 grams of crack cocaine, 2.4 kilograms of marijuana, and
over $7,000 in cash. The marijuana was found inside two garbage
bags that were wet and muddy, "as if [they] had been outside." Police
suspected that the marijuana had been dug from the ground near the
labor camp. They knew that the labor camp was often used for illicit
drug transactions and that both Williams and Fearon were former resi-
dents of the camp. Police also noticed that Williams' and Fearon's
boots were covered in fresh mud, as were the bottom of their pants.
Early that morning, three police officers found 321 grams of cocaine
base inside a freshly dug hole near the labor camp. Fearon's distinc-
tive shoe print was found around the hole. Later that day, police
searched the motel room and found almost $14,000 in cash.

A grand jury returned a three-count indictment charging Williams,
Fearon, and Branch with drug trafficking offenses. Branch plead
guilty and agreed to testify for the government in exchange for a sen-
tence of no more than five years. Williams was convicted on all three
counts and was sentenced to 361 months imprisonment.

II

Williams claims that the district court erred in denying his motion
to suppress the evidence of drugs found on his person and in the vehi-
cle. He contends that Hernandez had no reasonable suspicion to stop
the vehicle and that all evidence arising out of the initial stop must
be suppressed. We review the trial court's ultimate conclusion in a

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motion to suppress de novo. Ornelas v. United States, 116 S.Ct. 1657,
1662 (1996).

The government asserts that Rakas v. Illinois, 439 U.S. 128 (1978),
precludes Williams' standing to challenge the stop of Branch's vehi-
cle. In Rakas, the Supreme Court held that a passenger lacks standing
to challenge the search of a vehicle. Id. at 143. Williams distinguishes
Rakas on the ground that he is challenging the stop of the vehicle, not
the search of its contents.

We have recognized this distinction and permitted passengers to
challenge the initial stop of a car. United States v. Rusher, 966 F.2d
868, 874, n.4 (4th Cir. 1992); accord United States v. Kimball, 25
F.3d 1, 5-6 (1st Cir. 1994) ("the interest in freedom of movement and
the interest in being free from fear and surprise are personal to all
occupants of the vehicle."). We find that the stop was justified. An
ordinary traffic stop constitutes a limited seizure of the occupants of
a vehicle, and we analyze the reasonableness of such a stop under the
familiar rubric of Terry v. Ohio, 392 U.S. 1 (1968). Berkemer v.
McCarty, 468 U.S. 420, 439 (1992). Terry requires that an officer
must have a "specific and articuable" suspicion that criminal activity
is taking place before making an investigatory stop. Terry, 392 U.S.
at 21. Whether an officer's suspicion of criminal activity is reasonable
is determined by the totality of the circumstances. United States v.
Sokolow, 490 U.S. 1, 9 (1989). The circumstances courts consider
include the "characteristics of the area where the stop occurs, the time
of the stop . . . and any suspicious conduct of the person accosted
such as an obvious attempt to avoid officers or any nervous conduct
on the discovery of their presence." United States v. Bull, 565 F.2d
869, 871 (4th Cir. 1977).

Hernandez came upon Branch's vehicle on the side of a dark high-
way at midnight. The car was 100 yards from an area notorious for
drug trafficking and its lights were turned off. When he pulled over
to see if the vehicle was in need of roadside assistance, he made eye
contact with Branch, who immediately drove away rather than stop-
ping to speak with the officer. As Hernandez followed her car, he
noticed nervous and irregular movements among the occupants in the
vehicle, "like they were trying to hide something." When the car

                    4
swerved off of the road, he suspected the driver may have been drink-
ing, and "it was [his] duty to get them off the highway."

When these underlying facts are taken together and processed
through the eyes of a police officer experienced in drug investiga-
tions, they take on a "less innocent hue." United States v. Tate, 648
F.2d 939, 942-43 (4th Cir. 1981). Based upon the series of strange
and suspicious behavior witnessed by Hernandez, we find that a Terry
stop was proper.

III

Count One of the indictment charged Williams with conspiracy to
possess with the intent to distribute less than 50 kilograms of mari-
juana and more than 50 grams of cocaine base. Williams contends
that the indictment is duplicitous because it charges him for two sepa-
rate offenses which carry "dramatically" different penalties. He also
contends that the charge of "less than 50 kilograms" of marijuana was
prejudicial to him since the government knew that only 2.4 kilograms
of marijuana was involved in the offense.

Because Williams did not raise these objections at trial, he waives
his right to appeal. Fed. R. Crim. P. 12(f), United States v. Price, 763
F.2d 640, 643 (4th Cir. 1985). Even reviewing for plain error, Wil-
liams cannot prevail. An indictment may properly charge a conspiracy
involving more than two illegal substances in a single count. United
States v. Murray, 618 F.2d 892, 896-97 (2d Cir. 1980). Drug quanti-
ties are not essential elements of drug trafficking offenses. United
States v. Powell, 886 F.2d 81, 85 (4th Cir. 1989). The amount of mar-
ijuana charged in the indictment was not intended to prejudice the
jury, but to put Williams on notice of the maximum sentencing penal-
ties for drug trafficking offenses involving "less than 50 kilograms"
set forth in 21 U.S.C. 841(b)(1)(D). See appellee's brief at 20.

IV

During the government's examination of codefendant Branch, the
prosecutor asked a series of questions attempting to tie the defendants
together as coconspirators. When the prosecutor asked Branch when

                    5
Williams came to live at the motel with Fearon and her, Branch
responded, "when he got out of jail." The defendant offered no objec-
tion. The prosecutor made a reference to the "jail" remark during his
closing argument. Williams argues that the trial court erred in admit-
ting this evidence of Williams's prior incarceration.

Even though Williams did not object to the admission of this testi-
mony at trial, we are authorized to correct "plain errors" committed
in the district court. Fed. R. Crim. P. 52(b); United States v. Mitchell,
1 F.3d 235, 239 (4th Cir. 1993). An error rises to the level of plain
error only if it "undermine[s] the fundamental fairness of the trial and
contribute[s] to a miscarriage of justice." Id. at 240. We do not review
each isolated allegation of error in a vacuum, but within the context
of the entire trial proceeding. Id.

Neither Branch's response nor the prosecutor's argument affected
the fundamental fairness of the trial. The prosecution's line of ques-
tioning was designed to establish a conspiratorial relationship among
Williams, Fearon and Branch. Specifically, the government intended
to link Williams to the motel room shared by Fearon and Branch
where large unexplained amounts of cash were found. There is no evi-
dence that the prosecution intentionally elicited Branch's "in jail"
response or that it prejudiced the jury in any material way. Similarly,
the prosecution referred to Williams' confinement in jail during clos-
ing argument. Because the jail references were interwoven with the
underlying relevant facts to be proved in this case, they did not violate
the substantial rights of the defendant or result in a miscarriage of jus-
tice.

V

Williams claims that the court erred in attempting to define reason-
able doubt in its instructions to the jury. Again, Williams did not raise
this alleged error at trial, so we review for plain error.

The district court told the jury that "reasonable doubt has no techni-
cal, legal meaning. Legally, reasonable doubt, as used in this trial and
these instructions, has its usual and customary meaning . . . ." This
instruction does not rise to the level of plain error.

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VI

Williams argues that the evidence was insufficient to support the
conspiracy conviction. On appeal, we view the evidence in the light
most favorable to the government to determine whether it supports the
jury's verdict. Glasser v. United States, 315 U.S. 60, 80 (1942).

The essential elements of a conspiracy are (1) an agreement
between two or more persons, which constitutes the act; and (2) an
intent thereby to achieve an unlawful objective. United States v.
Burgos, 94 F.3d 849, 860 (4th Cir. 1996). If a conspiracy is proved,
the evidence "need only establish a slight connection between the
defendant and the conspiracy to support the conviction." Id. at 861.
This slight connection, however, must be proved beyond a reasonable
doubt. Id.

The evidence showed that on the night of the arrest, police found
quantities of marijuana, cocaine base, and cash on both Williams' and
Fearon's persons, in their motel room, and in a freshly dug hole near
Brown's labor camp. Both Williams and Fearon had been in the
woods next to the labor camp shortly before their arrest. Police
observed that both Williams' and Fearon had mud covering their
boots and the bottom of their pants. The next morning, police investi-
gators found cocaine base stuffed into a freshly dug hole at the labor
camp. Fearon's distinctive shoe print was discovered near the hole.
There were dirty, wet bags of marijuana found in the car and wet piles
of money in the motel room. The evidence is sufficient for a jury to
conclude that Williams and Fearon agreed to enter into a criminal
partnership to possess and distribute marijuana and cocaine base and
that their method of operation was to use the motel room and the hole
as hideaways for the drugs and cash.

VII

Williams contends that the district court erred in calculating the
amount of crack cocaine and marijuana attributable to him. The pre-
sentence report attributed 326.83 grams of cocaine base and 2.4 kilo-
grams of marijuana to Williams. These quantities were computed
from drugs found on Williams' person, in the car, and in the freshly
dug hole near the labor camp. Williams admits that he is responsible

                    7
for the 2.4 kilograms of marijuana found on his person. He also
admits that he is responsible for 5.13 grams of crack found on his per-
son and in the beer can found at his feet in the car. Williams denies
responsibility for the remaining 321.7 grams of cocaine base that
police found in the freshly dug hole near Brown's Labor Camp. Wil-
liams admits going to the labor camp with Fearon that night, but
claims that he knew nothing about drugs in a hole. He maintains that
Fearon told him that they were going to the labor camp to get some
money and some papers.

We review the district court's findings on drug quantities attribut-
able to a defendant for clear error. United States v. D'Anjou, 16 F.3d
604, 614 (4th Cir. 1994). Williams is accountable for all criminal con-
duct of his co-conspirators done in furtherance of the conspiracy that
was reasonably foreseeable to him. USSG § 1B1.3, comment (n.2)
(Nov. 1995).

A jury properly convicted Williams of conspiracy. The evidence
indicated that the drugs found on Williams' person, in the vehicle in
which he was riding, and in the hole near the labor camp, were all
connected to the conspiracy. Williams testified that he accompanied
Fearon to a site near the labor camp on the night of his arrest. It was
reasonably foreseeable to Williams that this trip in the middle of the
night to an abandoned area was in furtherance of the conspiracy to
possess and distribute drugs.

VIII

Williams' final arguments relate to the fines and restitution
imposed upon him by the district court. The court fined Williams
$2,500.00 for a violating § 841(a)(1), ordered that he reimburse the
government for the costs of court-appointed counsel, and ordered that
the fine and reimbursement be paid according to the terms established
by the probation officer. Williams challenges the court's findings on
his ability to pay the fine and reimbursement. He also challenges the
district court's delegation of the timing of payments to the probation
officer. Williams did not raise these objections at trial and we review
only for plain error.

The district court should not delegate its authority to establish the
payment terms of any unpaid fines and reimbursement as a condition

                     8
of supervised release. In United States v. Miller, 77 F.3d 71, 77-78
(4th Cir. 1996), this court held that a district court could not delegate
its authority to set the amount and timing of restitutionary payments
or fines to the Bureau of Prisons or a probation officer without retain-
ing ultimate authority over such decisions. We noted that "the statu-
tory duty imposed upon district courts to fix the terms of a fine must
be read as exclusive because the imposition of a sentence, including
the terms of probation or supervised release, is a core judicial func-
tion." Id. at 78.

The district court initially ordered Williams to pay the fine and
reimbursement immediately if he had the financial arrangements to do
so. The court also ordered that if Williams was unable to pay immedi-
ately, he must pay the fine and reimbursement as a condition of his
supervised release "on a schedule to be established by the probation
officer." Williams was not able to pay immediately, and so the proba-
tion officer retained authority over the timing of payments for the
entire amount of Williams' court-ordered financial obligations. This
delegation was impermissible in light of Miller . This is not to say that
the district court may not enlist the assistance of the probation officer
in setting the schedule for the payment of restitution and fines. Miller
holds that the probation officer may be involved in this process so
long as the district court retains "ultimate authority." 77 F.3d at 77.
"Ultimate authority can be retained by requiring the probation officer
to recommend restitutionary decisions for approval by the court." Id.

We decline to accept the government's argument that Miller
applies only to the amount of the required payment and not to its tim-
ing. Miller should not be read in such a narrow way. The schedule for
paying installments has an impact on both the government and the
prisoner. This provision of supervised release is"core judicial func-
tion." Id. at 78. The portion of Williams' sentence relating to the fine
must be vacated and remanded for resentencing.

AFFIRMED IN PART; VACATED IN PART;
AND REMANDED FOR RESENTENCING

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