UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 98-4425

JOHNNY LEE WESLEY,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 98-4426

TERRENCE RENARD RUSSELL,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Henry C. Morgan, Jr., District Judge.
(CR-97-382)

Submitted: June 29, 1999

Decided: July 19, 1999

Before ERVIN, HAMILTON, and MICHAEL,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, P.C.,
Atlanta, Georgia; Dana W. Johnson, MCLEMORE & JOHNSON,
P.C., Silver Spring, Maryland, for Appellants. Helen F. Fahey, United
States Attorney, James L. Trump, Assistant United States Attorney,
Thomas G. Connolly, 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Unpublished opinions are not binding precedent in this circuit.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:

Johnny Lee Wesley and Terrence Renard Russell appeal their con-
victions for conspiracy to distribute cocaine, marijuana, and crack
cocaine (in violation of 21 U.S.C. § 846 (1994)); for murder in the
furtherance of a drug trafficking offense (21 U.S.C.§ 848(e)(1)(A)
(1994) and 18 U.S.C. § 2 (1994)); and for interstate transportation in
aid of racketeering (18 U.S.C. §§ 1952 and 2 (1994)). We affirm.

I.

The story of the crimes of which Wesley and Russell stand con-
victed actually revolves around two other men, Colin Rose and Ray-
mond Mills. From 1987 until 1992, Mills had sold cocaine supplied
to him by Rose. Rose was in prison from 1993 until 1995, but, upon
release, he got back in touch with Mills, and soon the two were in the
drug business again. At first, they sold marijuana that they obtained
from a source in California. They recruited several accomplices,
including Defendant Russell. The primary distribution point for the
marijuana was the Rose Park apartment complex in Prince George's
County, Maryland.

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In early 1996, Rose found a source for cocaine in Jamaica. Over
the course of the conspiracy, eight different couriers traveled to
Jamaica to pick up the drug. The powder cocaine was converted to
crack cocaine in one of the Rose Park apartments and was sold in the
local neighborhood. About a kilogram of crack cocaine per week was
distributed in this fashion.

During the following summer, Russell was a very active participant
in the enterprise. He helped cook, cut, package, and distribute the
cocaine for Rose. Rose went to Florida for a while, but he still sent
Russell 125 to 150 grams of crack cocaine per week through the mail.

Meanwhile, relations between Mills and Rose had soured. Rumors
were afloat that Rose was a "snitch," and Rose believed that Mills was
the source. Nevertheless, Rose put business first. In December 1996,
he and his supplier met with Mills at Mills' apartment in Arlington,
Virginia. They cooked up a kilogram of crack cocaine, and they gave
it to Mills to sell. Mills was to pay $22,000 for the kilogram; he paid
$9,000 up front.

But Rose remained upset with Mills. In late December, Rose told
Russell that he wanted someone to beat up Mills. Russell replied that
he had a friend who would do the job. That friend was Defendant
Wesley.

A few days later, Rose, Russell, and Wesley met at Russell's apart-
ment. Rose asked Wesley to beat up Mills, and Wesley agreed. Rose
told Wesley that he could rob Mills as well, and he could expect to
get money, jewelry, and guns. Before Wesley left, Russell gave him
a quarter-ounce of cocaine.

The trio met to finish their plans on January 7, 1997, and Wesley
reported that his cousin would help him beat up and rob Mills. The
next day, Rose and Russell met at a nightclub in Washington, D.C.
They paged Wesley, he met them, and they drove to Mills' apartment
building in Arlington, Virginia, in Wesley's car, a white Lincoln.
Rose showed Wesley how to sneak into the building's parking garage
and where to expect Mills to park his car. Wesley showed Rose a
nine-millimeter pistol, and he said he would use it to confront Mills

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in the garage's elevator and force him into his apartment. Wesley then
drove Rose and Russell back to the capital city and dropped them off.

In the early hours of the next day, just as they had planned, Wesley
and his cousin confronted Mills in the elevator. The plan went awry
quickly, because Mills did not go meekly into his apartment. Instead,
he fought with his assailants in the elevator and outside the apartment,
holding on to a railing in a vain attempt to avoid going inside. After
dragging Mills into the apartment, Wesley and his cousin tied Mills
up with gray duct tape. Mills' head, face, neck, hands, and feet were
bound. The several layers of tape around his neck were twisted rope-
like and were applied so tightly that Mills died of ligature strangula-
tion.

Wesley and his accomplice ransacked the apartment. They stole
many of Mills' belongings, including crack cocaine, clothes, a gun,
jewelry, a cellular phone, a video cassette recorder, and even video
games. In a hasty exit from the parking garage, Wesley's car struck
a post. This event was witnessed by one of Mills' girlfriends, and it
was just the beginning of a long trail of evidence Wesley left of his
crime.

The next morning, Rose and Russell went to a small motel in
Maryland, where they met Wesley and his cousin. When they entered
the motel room, Rose saw and recognized the many items stolen from
Mills' apartment. Wesley's cousin told them that Mills was dead, and
Wesley then detailed the night's events. Wesley gave Russell an
ounce of crack cocaine, and Russell and Rose left, with Rose noticing
the damage to Wesley's car.

That very afternoon, Wesley and another person pawned some jew-
elry, a VCR, and a video game system at a Maryland pawn shop.
Wesley signed the receipt for the items. A surveillance camera
recorded the transaction on tape, and the pawnbroker noticed that
Wesley was walking with a limp. Mills' fingerprints were later found
on some of the video games Wesley pawned, and two gold charms
were identified as his by a friend and by photographs of Mills wearing
them.

Shonte Holley, a friend of Wesley, saw him on the evening of Jan-
uary 9. She noticed that he was limping badly, and she recalled that

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he had not been limping the day before. Over the next few days, she
also saw Wesley with money, nice clothing, a new watch and gun,
and jewelry.

Soon Rose learned that Wesley was using Mills' stolen cellular
phone, which angered him, inasmuch as telephone records of that use
would provide clues for police. He told Russell that Wesley should
get rid of the phone. Russell also learned that Wesley was selling
large amounts of stolen crack cocaine, which angered Russell because
Wesley had given him only an ounce.

On January 24, 1997, Wesley was approached by police on suspi-
cion of shoplifting, and he consented to a search of his car. The police
found a loaded semiautomatic pistol, later identified as identical to
one owned by Mills; 100 grams of crack cocaine; several compact
discs, upon one of which were Mills' fingerprints; cellular phones;
pagers; a digital scale; and some marijuana.

When the trail of evidence led to him, Rose decided to cooperate
with the government. In a second superseding indictment dated
December 18, 1997, Russell and Wesley were charged with conspir-
acy to distribute crack cocaine, powder cocaine, and marijuana; mur-
der in furtherance of drug trafficking; and interstate transportation in
aid of racketeering. After a five-day jury trial, they were convicted of
those charges. In addition, Wesley was charged with possession with
intent to distribute crack cocaine and use of a firearm during and in
connection with a drug trafficking offense. The possession charge
resulted in an acquittal, and the firearm count was dismissed on the
government's motion. Each Defendant was sentenced to three concur-
rent life sentences, and they now appeal.

II.

Wesley asserts that the evidence was insufficient to sustain his con-
victions. In the face of such a challenge, a jury verdict must be upheld
"if there is substantial evidence, taking the view most favorable to the
Government, to support it." Glasser v. United States, 315 U.S. 60, 80
(1942). Substantial evidence is evidence "that a reasonable finder of
fact could accept as adequate and sufficient to support a conclusion

                    5
of a defendant's guilt beyond a reasonable doubt." United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).

A conspiracy can be loosely knit; it need not have a rigid structure,
and its members need not be bound to it by a blood oath. See id. at
858. Though the evidence must prove the existence of the conspiracy
and the defendant's connection to it beyond a reasonable doubt, the
connection itself may be a slight one. See id. at 861. A person may
be convicted of conspiracy even if he does not know all of his cocon-
spirators or the entire breadth of the criminal undertaking. See id. at
858. Finally, a conspiracy may have a division of labor. One may be
a member of a drug trafficking conspiracy without actually handling
drugs. "In addition to selling narcotics, . . . participation may assume
a myriad of other forms, such as supplying firearms or purchasing
money orders for coconspirators or permitting them to store narcotics
and other contraband in one's home." Id. at 859.

The evidence that Rose, Russell, and Wesley agreed that Wesley
should beat up Mills was more than sufficient to satisfy the test of
Glasser and Burgos, but Wesley contends that the conspiracy proved
was a different one than the drug trafficking conspiracy charged.*

We think that a rational factfinder could surely conclude otherwise.
A witness testified that Wesley regularly had large quantities of crack
cocaine, packaged in small baggies, in his possession. Rose testified
that he witnessed Russell supplying Wesley with crack cocaine and
that Russell told him Wesley distributed cocaine for him in and about
Arlington. It is true that Rose was not familiar with Wesley before the
plot to beat up Mills was hatched, but, as we noted in Burgos, it is
not essential that every conspirator know every other conspirator.

Furthermore, his distribution of the conspiracy's product notwith-
standing, Wesley performed a classic conspiratorial role when he
agreed to act as "muscle" for Rose and Russell. Rose felt that the con-
_________________________________________________________________
*Wesley did not request an instruction on multiple conspiracies at
trial, and, largely for the reasons we find the evidence sufficient to sus-
tain his convictions, we hold that it was not plain error to omit such an
instruction.

                    6
spiracy was threatened by Mills, and Wesley agreed to squelch the
threat.

In short, there was substantial evidence supporting Wesley's con-
viction of conspiracy.

Wesley's challenge to his other two convictions largely rests on the
premise that he was not a member of the conspiracy. In addition,
however, he asserts that there was insufficient evidence that he
intended to kill Mills. In this regard, he speculates that the rolled-up,
rope-like piece of duct tape with which Mills was strangled got that
way through Mills' own efforts to free himself of it. He cites the testi-
mony of the medical examiner, who stated that this theory was "a pos-
sibility."

The jury was free to consider this "possibility," and we expect that
it did. Surely it was rational, however, for the jury to conclude beyond
a reasonable doubt that the duct-tape "rope" was fashioned by Mills'
assailants and that, in any event, the killing was intentional.

Wesley's convictions are affirmed.

III.

Russell does not challenge the sufficiency of the evidence. Rather,
he asserts that materially exculpatory evidence was withheld from
him, in violation of the rule of Brady v. Maryland, 373 U.S. 83
(1963), and that the prosecution knowingly sponsored the perjured
testimony of Rose. Though the facts cited in support of these claims
were then known to Russell, neither argument was raised at trial; con-
sequently, our review is for plain error. United States v. Olano, 507
U.S. 725, 731-32 (1993).

The Brady claim fails for a fundamental reason: the "exculpatory"
information cited by Russell was not withheld by the government.
The government's file was open. During cross-examination of Rose,
Russell's counsel managed to create an ambiguity as to when and
how Rose learned of Mills' death. On redirect, the timing was cleared
up: Rose and Russell had been told by Wesley and his cousin that

                     7
Mills was dead on the morning of January 9. Later that evening, a
person identified as "Buddy" called Rose to tell him that Mills had
been killed. Rose testified that Buddy's telephone call made him cer-
tain of Mills' death; up to that point, he "wasn't quite sure." This
ephemeral ambiguity, of the sort that arises numerous times at any
trial, was not "withheld" from Russell. Accordingly, it cannot consti-
tute a due process violation under Brady.

Russell also asserts that the government knowingly used Rose's
perjured testimony to secure his conviction. This argument is spe-
cious. According to Russell, when Rose pled guilty to charges arising
from the conspiracy, he signed a statement of facts that stated, "Rose
discussed with . . . Terrence Russell . . . Johnny Lee Wesley and oth-
ers robbing . . . Mills. Rose told them that they should `rough' up
Mills during the robbery. Rose did not direct, suggest, or encourage
them to kill Mills." Russell interprets this statement as an assertion
that he personally participated in the killing. Because Rose testified
at trial only that Russell recruited Wesley for the job and participated
in the planning of Mills' robbery, the argument continues, that testi-
mony must be perjurious. This argument is an odd one for Russell to
make, inasmuch as the alleged "perjury" benefitted him, if marginally,
by lessening his role in Mills' murder. In any event, we are certain
that there is no plain error here. The alleged inconsistency was
throughly explored at trial. Rose stuck to his trial testimony. The jury
weighed the evidence and found Russell guilty.

The judgments of the district court are affirmed. We dispense 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

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