UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 95-5541

WILL ESTER CAMPBELL,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, District Judge.
(CR-94-115-1-R)

Submitted: May 28, 1996

Decided: January 27, 1997

Before HAMILTON, LUTTIG, and WILLIAMS, Circuit Judges.

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Affirmed in part and dismissed in part by unpublished per curiam
opinion.

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COUNSEL

James R. Cromwell, VOGEL & CROMWELL, L.L.C., Roanoke, Vir-
ginia, for Appellant. Robert P. Crouch, Jr., United States Attorney,
Jennie M. Waering, Assistant United States Attorney, Thomas E.
Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Will Ester Campbell appeals his conviction for aiding and abetting
food stamp fraud, 18 U.S.C.A. § 2024(b) (West Supp. 1996), 18
U.S.C. § 2 (1988), and crack distribution, 21 U.S.C.A. § 841 (West
1981 & Supp. 1996), 18 U.S.C. § 2 on various grounds. He also seeks
to appeal the district court's decision not to depart downward under
USSG § 4A1.3.1 We affirm in part and dismiss in part.

I.

On May 28, 1992, United States Department of Agriculture Special
Agents Kevin Harrell and Shane Gilmore were conducting an investi-
gation into food stamp fraud in Roanoke, Virginia, with Lorenzo
Titus Banks, a confidential informant. Will Campbell was one of the
targets of the investigation. While Harrell was driving around with
Banks and Gilmore, Banks saw Campbell driving ahead of them.
Banks approached Campbell while both cars were stopped at a red
light and told Campbell that his cousin (Harrell) wanted to exchange
$200 worth of food stamps for crack. Banks testified that Campbell
responded positively, saying that he was going to have a barbecue,
and told Banks to follow him to his house.

When they arrived at Campbell's house, Campbell went inside.
Terry Washington, who had been a passenger in Campbell's car, got
in Harrell's car with the agents and Banks and accepted the food
stamps with the comment that they could use the food stamps because
they were planning to have a barbecue or cookout. After waiting
about five minutes, Harrell and Banks went up to the door of the
house and knocked. Washington let Banks in, but left Harrell standing
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1 United States Sentencing Commission, Guidelines Manual (Nov.
1994).

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on the porch. Banks testified that Washington went upstairs while he
waited at the bottom of the stairs for a few minutes. He said that,
while he waited, he heard Campbell say, "Hurry up," and heard the
sound of a vase being picked up. Shortly thereafter, Washington
returned, wearing a turtleneck turned up to cover his face, and gave
Banks 1.2 grams of crack.

As Banks exited with the crack, he said to Washington, "This is
Will's stuff, right," or "This is Will Campbell's drugs." Washington
replied, "Shut up, shut up. You know you don't supposed to say that
sh__." Both Banks and Harrell heard the statement.

In September 1994, Campbell was charged with aiding and abet-
ting in food stamp fraud and crack distribution. Banks testified at
Campbell's trial that he knew that Campbell kept crack in a tree stand
vase because he had been present before when Campbell sold crack
to his uncle. Defense counsel objected to this statement "for the
record" and the district court overruled the objection. The district
court instructed the jury that they could not consider the evidence of
Campbell's prior distributions in determining his guilt, but could con-
sider it "as bearing on the question of whether the defendant intended
to participate in Washington's unlawful conduct" if they were con-
vinced beyond a reasonable doubt of Campbell's guilt based on other
evidence (J.A. at 88).

Washington testified in Campbell's defense that when Banks
approached Campbell's car at the red light, Campbell told Banks he
did not have any drugs. He said Banks followed them to Campbell's
house of his own volition and called him to the car while Campbell
went inside. He said he did not remember sitting in the agent's car
and went inside the house without agreeing to exchange crack for
food stamps. Washington testified that Banks knocked on the door
half an hour later and pressed him for drugs, so he decided to give
Banks a small amount of crack in exchange for the food stamps with-
out letting Campbell know about the transaction.

II.

A.

A jury convicted Campbell of both counts against him. He now
appeals contending first that the evidence was insufficient to support

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the convictions. A conviction should be sustained if, viewed in the
light most favorable to the government, there is substantial evidence
to support it. Glasser v. United States, 315 U.S. 60, 80 (1942). Cir-
cumstantial as well as direct evidence is considered, and the govern-
ment is given the benefit of all reasonable inferences from the facts
proven to the facts sought to be established. United States v. Tresvant,
677 F.2d 1018, 1021 (4th Cir. 1982). Here, the government had to
prove that Campbell acquired or aided and abetted the acquisition of
food stamps in a manner unauthorized by the federal statute or regula-
tions, United States v. Liparota, 471 U.S. 419, 433 (1985), and that
he knowingly and intentionally distributed crack, United States v.
Elliott, 849 F.2d 886, 889 (4th Cir. 1988), or aided and abetted Wash-
ington in doing so.

In convicting Campbell, the jury chose to believe the testimony of
Banks rather than that of Washington, a decision not reviewable on
appeal. United States v. Murphy, 35 F.3d 143, 145 (4th Cir.), cert.
denied, ___ U.S. ___, 63 U.S.L.W. 3563 (U.S. Jan. 23, 1995) (No.
94-7337). Given that the jury found Banks credible, the evidence was
sufficient to convict Campbell. Banks testified that he asked Camp-
bell to supply the crack and that Campbell responded positively by
mentioning that he was going to have a barbecue and telling Banks
to follow him to his house. Further, Banks testified that, in the house,
he heard Campbell tell Washington to hurry, and that the sound of the
vase being moved indicated to him that crack was being removed
from a hiding place which he had seen Campbell use for crack in the
past.

B.

Campbell next maintains that the district court abused its discretion
by admitting Banks's testimony that he had witnessed Campbell dis-
tribute crack in the past. Evidence of a defendant's prior bad acts is
admissible if it is relevant to an issue other than character, is neces-
sary to show an essential part of the crime or its context, and is reli-
able. The district court's decision to admit the evidence is reviewed
for abuse of discretion, and substantial prejudice must be shown to
warrant exclusion. United States v. Powers, 59 F.3d 1460, 1464-65
(4th Cir. 1995), cert. denied, ___ U.S. ___, 64 U.S.L.W. 3485 (U.S.
Jan. 16, 1996) (No. 95-6391) (citations omitted).

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Banks's testimony that he had previously seen Campbell distribute
crack which he kept in the tree stand vase was relevant to Campbell's
identity as a participant in the distribution on May 18, 1992, and to
his intent to aid and abet Washington in acquiring the food stamps in
exchange for crack. The testimony was necessary because neither
Banks nor the agents actually saw Campbell handle the crack or
instruct Washington to make the exchange. The evidence was reliable
because Banks personally observed Campbell make the previous dis-
tribution and recognized the sound of the vase being moved just
before he received the crack from Washington.

Campbell argues that the testimony was unfairly prejudicial. How-
ever, exclusion of evidence on this basis is required only when "the
trial judge believes that there is a genuine risk that the emotions of
the jury will be excited to irrational behavior, and that this risk is dis-
proportionate to the probative value of the offered evidence." Powers,
59 F.3d at 1467 (quoting United States v. Masters, 622 F.2d 83, 87
(4th Cir. 1980)). No such danger appears here. Campbell also argues
that Banks's testimony that he heard the vase being moved on the
floor above him was incredible. He did not make this argument in the
district court and we do not find Banks's testimony inherently unbe-
lievable. Therefore, the district court did not abuse its discretion in
permitting him to testify that he witnessed a prior similar distribution
by Campbell.

C.

Campbell also contests the district court's decision to permit testi-
mony about Washington's statement to Banks that he was not sup-
posed to say who supplied the crack. Campbell argues that the
statement should have been excluded as hearsay because it was not
made in furtherance of or in the course of a conspiracy. See Fed. R.
Evid. 801(d)(2)(E). He points out that the distribution had been com-
pleted when Washington made the statement. The district court's evi-
dentiary rulings are reviewed for abuse of discretion. United States v.
Moore, 27 F.3d 969, 974 (4th Cir.), cert. denied, ___ U.S. ___, 63
U.S.L.W. 3348 (U.S. Oct. 31, 1994) (No. 94-6283). Assuming that
the objection was on hearsay grounds,2 we find that the district court
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2 Campbell's attorney objected to Harrell's testimony about Washing-
ton's admonition to Banks "for the record," but did not state the grounds

                     5
did not abuse its discretion in overruling the objection because the
statement was made in the course of the conspiracy. Although the
exchange of crack for food stamps had been completed by the time
Washington made the statement, he was still attempting to conceal
from Harrell, as far as possible, his own identity and the source of the
crack.

D.

Finally, Campbell contests the district court's decision not to depart
below the sentencing guideline range. Having failed to persuade the
district court that the criminal history points he accumulated between
the date of the instant offense and his sentencing should not be
counted, Campbell sought a departure under USSG§ 4A1.3. He
argued that the government's delay in prosecuting him allowed him
to commit the additional offenses and incur the additional criminal
history points, thus increasing his criminal history category from V
to VI. The district court declined to depart on this ground. A district
court's discretionary decision not to depart is not reviewable unless
it is based on a mistaken belief that the court lacks the legal authority
to depart. United States v. Bayerle, 898 F.2d 28, 31 (4th Cir.), cert.
denied, 498 U.S. 819 (1990). Campbell does not suggest that the dis-
trict court misunderstood its authority to depart and the record does
not reveal that it did. Consequently, the court's discretionary decision
is not reviewable.

III.

We therefore affirm Campbell's conviction and dismiss his appeal
of the sentence imposed by the district court. We dispense with oral
argument because the facts and legal contentions are adequately pres-
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for the objection. The objection was summarily overruled. There was no
objection when Banks later testified about the statement. In fact, the only
discussion of the testimony about this statement occurred at a pretrial
motions hearing in which Campbell requested that the indictment be dis-
missed because of the two-year delay in charging him. Defense counsel
argued that Campbell would not remember the events which took place
on the date of the alleged offense two years earlier.

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ented in the materials before the court and argument would not aid the
decisional process.

AFFIRMED IN PART, DISMISSED IN PART

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