UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 95-5847

TERESA D. VARNEY,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 95-7709

TERESA D. VARNEY,
Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, District Judge.
(CR-92-176, CA-94-579-1)

Argued: May 10, 1996

Decided: July 17, 1996

Before MICHAEL, Circuit Judge, NORTON, United States District
Judge for the District of South Carolina, sitting by designation, and
DOUMAR, Senior United States District Judge
for the Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: John G. Hackney, Jr., Charleston, West Virginia, for
Appellant. John Castle Parr, Assistant United States Attorney,
Charleston, West Virginia, for Appellee. ON BRIEF: Rebecca A.
Betts, United States Attorney, Charleston, West Virginia, for Appel-
lee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Teresa D. Varney was convicted after a jury trial of five counts
stemming from a drug trafficking conspiracy in which she engaged
with her husband. On appeal, she challenges the admission of certain
evidence and her conviction of using or carrying a firearm in violation
of 18 U.S.C. § 924(c)(1). We affirm.

I.

Viewed in the light most favorable to the government, Glasser v.
United States, 315 U.S. 60, 80 (1942), the evidence at trial demon-
strated that from January, 1991 to June, 1992, Teresa D. Varney
(hereafter "Varney" or "defendant") and her husband Kenneth Varney
engaged in a conspiracy to distribute and possess with intent to dis-
tribute narcotics in Mercer County, West Virginia. Kenneth Varney
was the primary actor in the conspiracy; Teresa Varney accompanied
him on frequent trips to procure the drugs from a supplier out-of-state,
and on almost-daily visits to a street-level dealer.

The Varneys' normal routine was to travel to Atlanta, where Ken-
neth met his supplier and picked up the narcotics that would then be
distributed back in West Virginia. They were often accompanied on

                    2
these trips by one of two older women, Biddie Thomas (age 54) and
Louise White (age 61). At the time of her arrest, in 1992, defendant
was age 25; her husband is 16 years her senior. The older women
were apparently brought along to provide cover, that is, to make the
Varneys less suspicious to law enforcement.

The conspiracy ended in June, 1992, when Biddie Thomas, by then
a confidential informant, called her contact in the West Virginia state
police to tell him that the Varneys would be returning to the state with
a supply of drugs. A roadblock was set up outside Bluefield, West
Virginia on a highway off-ramp. The police had a federal search war-
rant. Because the officers were aware there was a firearm in the car,
they approached the car with their weapons drawn. Defendant was in
the passenger seat. One officer yelled several times at Varney -- each
time instructing her to get out of the car. Defendant was slow to
respond, and began reaching to her left for her pocketbook. At this
point, two officers grabbed her and pulled her from the car. The purse
was recovered from a position just to the left of the passenger seat.
The police found a loaded, .38 caliber, two shot derringer in a radar
detector case inside her purse; they also found numerous bags of mar-
ijuana in the trunk of the car.

On July 9, 1992, a grand jury charged the defendant and her hus-
band in a five count indictment. Count One charged them with con-
spiracy to distribute and to possess with intent to distribute cocaine
and marijuana in violation of 21 U.S.C. § 846. Count Two charged
them with traveling in interstate commerce with intent to facilitate or
carry on an unlawful activity in violation of 18 U.S.C. § 1952(a)(3).
Count Three charged them with possession with intent to distribute
marijuana (aided and abetted by each other), in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2. Count Four charged them with using
and carrying a firearm during and in relation to a drug trafficking
offense, in violation of 18 U.S.C. § 924(c). Count Five charged
Teresa Varney with conduct to intimidate or corruptly persuade a wit-
ness to withhold testimony, in violation of 18 U.S.C. § 1512(b)(2);
Kenneth Varney was not named in this count.

On February 3, 1993, after a two day trial, a jury found Teresa
Varney guilty of all five counts charged in the indictment.1 On April
_________________________________________________________________
1 Kenneth Varney was tried separately.

                    3
23, 1993, she was sentenced to 84 months imprisonment. This sen-
tence consisted of 24 months on Counts One, Two, Three, and Five
(to run concurrently) and a 60 month consecutive term, as required by
statute, on Count Four.

The path from sentencing to this court took some three years; it
deserves brief elaboration.

Following sentencing, defendant informed her trial counsel that she
wanted to appeal; he learned of this on May 4, 1993. Counsel errone-
ously concluded that the ten-day period for noticing an appeal under
Federal Rule of Appellate Procedure 4(b) had run, and, consequently,
did not file a notice of appeal. In fact, the ten-day period did not com-
mence until entry of the judgment order on April 26, and an appeal
would have been timely on May 4.

The following March, defendant filed a notice of appeal pro se; it
was dismissed as untimely on motion of the United States. In August,
1994, Varney filed a 28 U.S.C. § 2255 motion alleging ineffective
assistance of counsel for failure to notice the appeal. The Magistrate
Judge to whom the case was referred recommended that the court
simply vacate and immediately reinstate the sentence, thereby giving
Varney a chance to pursue a direct appeal. Before the district court
passed on this recommendation, defendant (by now assisted by a new
counsel) requested more time to file additional§ 2255 claims. The
Magistrate Judge to whom the case was again referred repeated her
earlier recommendation that the court vacate and reinstate defendant's
sentence; she also made recommendations on the other claims submit-
ted. On October 12, 1995, the district court found that the failure of
counsel to file a notice of appeal constituted ineffective assistance.
The court therefore vacated the sentence and reinstated the same sen-
tence for the sole purpose of allowing Varney to take a direct appeal.
The court declined to consider the additional § 2255 claims until
defendant exhausted her direct appeal, and dismissed them without
prejudice. This time, Varney timely noticed an appeal.

Thus, on this appeal we consider only the alleged errors at trial, and
intimate no opinion on the § 2255 claims not passed on by the district
court.

                     4
II.

A.

Varney contends that certain evidence was admitted in violation of
Federal Rule of Evidence 404(b). Because there was no objection at
trial to the allegedly infirm testimony, we review this claim for plain
error. Fed. R. Evid. 103; United States v. Chin , 83 F.3d 83, 87 (4th
Cir. 1996). Therefore, her conviction may be reversed only if there
was "(1) error (2) which was plain; (3) which affected substantial
rights; and (4) which seriously affected" the fairness of the proceed-
ings. Fed. R. Crim. P. 52(b); United States v. Moore, 11 F.3d 475, 481
(4th Cir. 1993), cert. denied, 114 S.Ct. 1864 (1994) (citing United
States v. Olano, 507 U.S. 725, 732-37 (1993)).

B.

Rule 404(b) provides in pertinent part that

          [e]vidence of other crimes, wrongs, or acts is not admissible
          to prove the character of a person in order to show action
          in conformity therewith. It may, however, be admissible for
          other purposes, such as proof of motive, opportunity, intent,
          preparation, plan, knowledge, identity, or absence of mis-
          take or accident . . . .

Rule 404(b) is a rule of inclusion, admitting "all evidence of other
crimes or acts except that which tends to prove only criminal disposi-
tion." United States v. Powers, 59 F.3d 1460, 1464 (4th Cir. 1995)
(quoting United States v. Percy, 765 F.2d 1199, 1203(4th Cir. 1985)).
Under Rule 404(b), prior bad acts are admissible if"(1) relevant to
an issue other than character, (2) necessary, and (3) reliable." United
States v. Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988). Of course, even
if admissible under Rule 404(b), evidence may be excluded if its
"probative value is substantially outweighed by the danger of unfair
prejudice." Fed. R. Evid. 403.

Varney objects to four portions of the testimony. None of these
claims has merit.

                    5
Varney objects first to testimony by Louise White that defendant
convinced White to buy a car for her, while keeping it titled and
insured in White's name. The apparent motive for doing so was to
avoid scrutiny by welfare investigators (the Varneys were apparently
receiving food stamps). Varney claims that this suggestion of welfare
fraud was prejudicial.2 Significantly, however, the only mention of
this motivation came on cross-examination. (Joint Appendix 167-68)
(hereafter "J.A."). Thus, there can be no objection to this evidence by
the defendant.

Defendant next objects to testimony by Biddie Thomas suggesting
that the Varneys obtained money from Louise White under false pre-
tenses. (J.A. 77). Whatever harm resulted from this brief (and cryptic)
testimony does not constitute plain error, particularly given that
defense counsel subsequently elicited more precise testimony from
Louise White herself about the money that the Varneys induced her
to give to them. (J.A. 164-68).

Defendant also objects to testimony by White that she paid Ken-
neth Varney several thousand dollars to beat up her son-in-law, who
was abusing both White and White's daughter. (Mr. Varney did not
keep his end of the bargain). At no point during this testimony is the
defendant's name mentioned in connection with the plan to beat up
White's son-in-law. By definition, this is not error, because there was
no prejudice to defendant herself.
_________________________________________________________________

2 Defendant urges that prejudice is manifest in that the suggestion of
welfare fraud "so inflamed the passions of one juror that she felt com-
pelled to bring the matter to the attention of the Court." In fact, this per-
son, the alternate juror, informed the judge (outside the presence of the
other jurors) that she worked for the West Virginia Department of
Human Services, and was obligated by her job to report any evidence of
welfare fraud. Thus, when the issue arose at trial, she promptly (and
properly) sought to inform the court of possible bias. The district judge
decided not to dismiss her at that point -- inasmuch as she had already
been designated as the alternate -- and stated that he would deal with the
question of whether to dismiss her only if she was ultimately needed for
a verdict. (Joint Appendix 213C-213G).

                     6
Finally, defendant claims prejudice regarding an incident described
by White. Kenneth Varney was driving at a high speed, and when he
saw a police car in pursuit, instructed Teresa to switch places with
him. Teresa responded by stating that "I can't be under the wheel" and
told White to get into the driver's seat. White got a speeding ticket
as a result. There was no testimony that drugs were present or that the
police tried to search the car. Even if this was error, it is impossible
to discern how it constitutes plain error or affected defendant's sub-
stantial rights -- other than to demonstrate that she did not want to
be charged with speeding. It certainly does not indicate a criminal dis-
position or a disposition to engage in drug trafficking.

In sum, we find no plain error in the admission of the foregoing
evidence. Nor do we find that its admission violated the proscription
of Rule 403.

III.

A.

Defendant challenges the sufficiency of the evidence on Count
Four, which charged her with using or carrying a firearm during and
in relation to a drug offense, in violation of 18 U.S.C. § 924(c). We
review this claim under the well-settled standard that a criminal con-
viction shall not be set aside for insufficient evidence if, "viewing the
evidence in the light most favorable to the government, any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-
19 (1979).

B.

Title 18, United States Code, Section 924(c)(1) requires a five year
consecutive term for any person who "during and in relation to any
. . . drug trafficking crime . . . uses or carries a firearm." By its terms,
the statute requires two showings: that the defendant "used or carried"
a firearm, and, if so, that such occurred "during and in relation" to a
drug trafficking crime. Smith v. United States , 508 U.S. 223, 227-28
(1993).

                     7
The latter aspect is easily satisfied. The Supreme Court has stated
that the "during and in relation to" element requires, at a minimum,
that the firearm "must have some purpose or effect with respect to the
drug trafficking crime" and its presence cannot be a coincidence. Id.
at 238; see United States v. Sloley, 19 F.3d 149, 152 (4th Cir. 1994)
("in relation to" requires that gun "facilitated, furthered, or had the
potential to facilitate or further the drug crime").

Here, there was testimony that the Varneys carried a gun on every
trip to the south. (J.A. 101, 115). Additionally, Louise White testified
that, as they were setting off, Kenneth Varney would sometimes ask
defendant "Do you have that gun?", and that on one occasion she
replied that she did not and then went back into the house to get it.
(J.A. 171-72). Moreover, the gun was next to the defendant in the car
when the Varneys were transporting a supply of marijuana. A rational
jury, therefore, could find that the presence of the gun had the poten-
tial to facilitate or further the drug crime and its presence was not
coincidental.

That leaves the question of whether the defendant"used or carried"
the firearm. There can be no doubt, and the government concedes as
much, that the defendant did not "use" the firearm within the meaning
of Bailey v. United States, 116 S.Ct. 501, 505 (1995), which requires
some showing that the firearm was "actively employed." Having said
that, the evidence described above regarding the circumstances of the
defendant's arrest -- where the gun was within her purse, which itself
was within arm's reach -- supports the jury's finding that Varney
"carried" the firearm within the meaning of Section 924(c)(1). United
States v. Hayden, ___ F.3d ___, #6D 6D6D#, No. 94-5861, slip. op. at 13-14
(4th Cir. May 31, 1996); see United States v. Baker, 78 F.3d 1241,
1247-48 (7th Cir. 1996) (transporting gun within immediate reach
constitutes "carrying"); United States v. Farris, 77 F.3d 391, 395-96
(11th Cir. 1996) (gun in glove compartment of car satisfies "carry"
prong).

IV.

Finally, Varney argues that her trial counsel was ineffective for
failing to raise the issue of her competency to stand trial. Ineffective
assistance of counsel claims should be raised under 28 U.S.C. § 2255

                    8
motions, unless it "conclusively appears" from the record that counsel
was ineffective. United States v. Matzkin, 14 F.3d 1014, 1017 (4th
Cir. 1994); United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir.
1991), cert. denied, 503 U.S. 997 (1992); United States v. Fisher, 477
F.2d 300, 302 (4th Cir. 1973); United States v. Mandello, 426 F.2d
1021, 1023 (4th Cir. 1970). Because the record before us does not
conclusively demonstrate that Varney's trial counsel was ineffective,
we decline to consider this issue.

V.

For the foregoing reasons, we affirm defendant-appellant Teresa
Varney's conviction.

AFFIRMED

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