                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 07-4573


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

QUENELL WALTERS,

                Defendant - Appellant.



                               No. 07-4600


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

P. W. FERGUSON, a/k/a P. W., a/k/a Patrick William Ferguson,

                Defendant - Appellant.



Appeals from the United States District Court for the District
of South Carolina, at Columbia. Joseph F. Anderson, Jr., Chief
District Judge. (3:06-cr-00061-JFA-20; 3:06-cr-00061-JFA-6)


Argued:   September 25, 2009                 Decided:   October 29, 2009


Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.


ARGUED: David Bruce Betts, Columbia, South Carolina; James
Arthur Brown, LAW OFFICES OF JIM BROWN, PA, Beaufort, South
Carolina, for Appellants.    Jimmie Ewing, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.      ON
BRIEF: James H. Babb, HOWLE & BABB, LLP, Sumter, South Carolina,
for Appellant Quenell Walters. W. Walter Wilkins, United States
Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

          Quenell         Walters     and       P.W.     Ferguson     appeal     their

convictions     for   (1)    conspiring          to     possess    with     intent    to

distribute and distribute cocaine base and (2) possessing with

intent to distribute and distributing cocaine base.                           Ferguson

also appeals his mandatory life sentence.                   Finding no error, we

affirm.

                                        I.

             From   2000    until   2005        the    Columbia,    South    Carolina,

Police Department and the FBI ran a joint investigation of drug

activities    in    the    McDuffie    Street         neighborhood    of     Columbia.

Drug dealing in the neighborhood was tightly controlled.                             Only

members of the Bloods street gang or persons who lived or grew

up in the neighborhood could sell drugs there.                     Any outsider who

attempted to sell drugs in the area was beaten.

          Walters was a member of the Bloods gang.                        Over a two-

month period Nickolas Guild sold at least one hundred grams of

crack to Walters on a street adjoining McDuffie.                     Walters resold

this crack.     Ferguson lived in Loretta Brown’s house on McDuffie

Street.   Brown’s house was used as a central gathering spot and

safe haven for drug traffickers.                 Jerblonski Addison sold crack

to Ferguson on a daily basis over a couple of years; these sales

totaled at least fifty grams.               Guild sold at least 50 grams of

crack to Ferguson, and Guild saw Ferguson sell crack on McDuffie

                                            3
Street on a daily basis.                Debra Brown, an informant, videotaped

both Walters and Ferguson participating in a crack transaction

on McDuffie Street.

            Walters and Ferguson were charged in two counts of a

twenty-eight       count           indictment       returned      against        twenty-one

individuals by a federal grand jury on January 17, 2006.                                   Count

1 charged both defendants with conspiring to possess with intent

to    distribute       and    distribute       fifty     grams    or    more   of     cocaine

base, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A), and

846.       Counts        16     and     22     charged      Ferguson       and      Walters,

respectively,          with    possessing       with     intent    to     distribute        and

distributing       a    quantity       of     cocaine    base,     and    in   aiding       and

abetting, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C)

and 18 U.S.C. § 2.

            The        other       nineteen    co-conspirators           charged      in    the

indictment       pled     guilty.            Walters     and     Ferguson      were        tried

together, and on February 15, 2007, the jury found them guilty

of the counts charged.                The district court sentenced Walters to

a    mandatory    minimum          prison    term   of   240     months    and     sentenced

Ferguson to a mandatory term of life in prison.

            Walters          and    Ferguson       appeal   their      convictions,         and

Ferguson appeals his life sentence.




                                               4
                                                II.

                                                A.

            Walters          argues        that       admitting      evidence        of     his

membership       in    the        Bloods     street         gang   violated        his    First

Amendment    right          of    assembly.            Both    defendants         argue     that

allowing testimony about the Bloods street gang was irrelevant

and resulted in unfair prejudice.                       We review the admission of

this    evidence       for       abuse     of   discretion.              United    States    v.

Perkins, 470 F.3d 150, 155 (4th Cir. 2006).

            The district court did not abuse its discretion in

allowing    evidence         of    Walters’          gang    association.          The    First

Amendment does not bar evidence of a person’s associations when

it    provides     a       link    to    criminal       activity.           “Assessing      the

probative value of common membership in any particular group,

and weighing any factors counseling against admissibility is a

matter first for the district court’s sound judgment under Rules

401 and 403.”          United States v. Abel, 469 U.S. 45, 54 (1984).

The    evidence       of    Walters’       membership         in   the    Bloods    gang    was

relevant to the conspiracy charge because the gang controlled

the drug activity in the McDuffie Street area.                              Those who were

not Bloods were not allowed to sell drugs in the area unless

they grew up there or lived there.                          The district court did not

abuse its discretion in deciding that the probative value of

evidence about Walters’ membership in the gang and the gang’s

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power   of   exclusion      was    not      substantially            outweighed      by    the

danger of unfair prejudice.             See Fed. R. Evid. 403.

                                            B.

              The   defendants       next     challenge         the    district      court’s

refusal to allow them to introduce evidence that no cooperating

government witness took or was required to take a polygraph.

According     to    the     defendants,            this    ruling       violated          their

constitutional       rights       to     confront          adverse         witnesses,       to

effective assistance of counsel, and to due process of law.

             In this circuit the results of a polygraph are not

admissible    to    impeach   the      credibility         of    a    witness.           United

States v. Sanchez, 118 F.3d 192, 197 (4th Cir. 1997).                                If the

results of a polygraph examination cannot be used to impeach a

witness, it follows that the absence of a polygraph cannot be

used for impeachment either.              It was not an abuse of discretion

for the district court to disallow evidence that no cooperating

witness took a polygraph test.

                                            C.

             The    defendants     requested          a    verdict         form    (or    jury

interrogatories) that would have required the jury to make a

specific     drug     quantity         determination           as     to     the    overall

conspiracy and as to each defendant.                      The district court denied

these   requests.         Instead,      the       court   –-    with    respect      to    the

overall      conspiracy       and        each         defendant            --      submitted

                                              6
interrogatories        that        allowed      the     jury     to    find      drug    quantity

ranges corresponding to the penalties prescribed in 21 U.S.C.

§ 841(b).

              The defendants argue that the interrogatories violated

their Sixth Amendment right to a jury trial.                               Citing Apprendi v.

New Jersey, 530 U.S. 466 (2000), the defendants argue that the

jury   should       have     been        permitted      to     determine         specific         drug

quantities          rather         than     the         ranges        specified          in        the

interrogatories.            “We review allegations of a constitutionally

defective jury instruction de novo.”                           United States v. Stitt,

250    F.3d    878,     888       (4th     Cir.       2001).          This      attack       on    the

interrogatories        has        no     merit.         There     is       no   authority          for

requiring      the     jury       to     find     the    exact        quantifies        of     drugs

involved.             The     drug         quantity          ranges          listed      in        the

interrogatories properly reflected the same ranges listed in 21

U.S.C. § 841(b).

                                                D.

              Next,    the        defendants      challenge          the     district        court’s

jury    instruction          on     the    conspiracy          charge.           Because          this

argument was not raised at trial, our review is for plain error.

United States v. Reid, 523 F.3d 310, 315 (4th Cir. 2008).

              The      defendants            contest           the      district             court’s

instruction that if the jury found both defendants guilty of the

conspiracy      charge,           then    the     quantity       of        cocaine      it        found

                                                  7
attributable to the conspiracy for each defendant had to “match

up, because we are talking about the same conspiracy.”                                     J.A.

746.     First, the defendants argue that this served to direct a

verdict on whether the evidence proved a single conspiracy or

multiple conspiracies.              This argument fails because there was no

evidence that either defendant’s actions related to a conspiracy

separate      from    the       McDuffie        Street     conspiracy.           A   multiple

conspiracy instruction is not required if there is no proof of

multiple conspiracies.               See United States v. Nunez, 432 F.3d

573, 578 (4th Cir. 2005).                 Second, the defendants argue that the

instruction         prevented       the     jury      from     making       an   independent

determination         of    the    weight        of   drugs      attributable        to    each

defendant as a member of the conspiracy.                             See United States v.

Collins,      415    F.3d    304    (4th     Cir.     2005).          We    disagree.      The

district      court    complied       with       circuit       law    in    instructing     the

jury.    The court instructed the jury that it needed to determine

(1) whether “the government has proved beyond a reasonable doubt

that    the    defendant        participated          in   a    conspiracy,”         (2)   “the

amount of cocaine base that the government has proved beyond a

reasonable doubt is attributable to the entire conspiracy,” and

(3)    “the   amount       of     cocaine    base      that     the    government       proved

beyond    a   reasonable          doubt    is    attributable          to   each     defendant

found to be a member of the conspiracy himself as an individual



                                                 8
member    of     the    conspiracy.”             J.A.      731-32.          The    conspiracy

instruction, taken as a whole, was not erroneous.

                                            E.

              Walters claims a Brady and Giglio violation because

the district court refused to require the government to disclose

FBI   agent      Rodney       Crawford’s        notes      of     his     interrogation         of

Walters.       See Brady v. Maryland, 373 U.S. 83 (1963); Giglio v.

United States, 405 U.S. 150 (1972).                        The 302 report prepared by

Agent Crawford reflected that Walters admitted his membership in

the Bloods gang, and Agent Crawford testified to that effect.

Walters -- through an oral statement made by his counsel --

denied that he had made such an admission to Agent Crawford.

Walters    did    not        offer   a   sworn       denial,      nor     did     he    ask    the

district       court     to     conduct     any       in-camera         review         of    Agent

Crawford’s notes.             In any case, Walters argues that the notes

should have been made available for impeachment purposes.

              To succeed on a Brady claim, the defendant must show

“that prejudice resulted from the suppression.”                            Vinson v. True,

436 F.3d 412, 420 (4th Cir. 2006).                        Here, even if it is assumed

that the interview notes should have been produced, Walters has

not   shown      prejudice.          Both       Danny      Sims     and    Nickolas          Guild

testified that Walters was a member of the Bloods gang.                                      Thus,

Agent     Crawford’s          testimony     that          Walters       admitted        to     his

membership      in     the    Bloods     gang       was   cumulative       evidence.           The

                                                9
district court’s refusal to require the government to turn over

Agent Crawford’s notes of his interrogation of Walters therefore

did not result in any prejudicial error under Brady and Giglio.

                                             F.

              Finally, Ferguson argues that his trial counsel was

ineffective for failing to contest the mandatory life sentence

imposed    by      the     district   court.         The       court      was   required     to

sentence      Ferguson       to   a   life    term    if       he    violated     21     U.S.C.

§ 841(b)(1)(A)           after    having     two    or     more      prior      felony      drug

convictions that had become final.

              An    ineffective       assistance          of    counsel      claim     is    not

cognizable on direct appeal “unless it conclusively appears from

the    record      that     defense    counsel       did       not     provide     effective

representation.”            United States v. Benton, 523 F.3d 424, 435

(4th Cir. 2008).

              Ferguson argues that his trial counsel was ineffective

for: (1) failing to object to the life sentence enhancement or

to request an enhancement hearing; (2) failing to challenge the

district        court’s       consideration          of        an     uncounseled          prior

conviction; (3) failing to argue that Ferguson did not enter

into    the        § 841     conspiracy       after       his        prior      felony      drug

convictions        became    final;    and    (4)     failing        to    request     a    jury

determination of the dates of Ferguson’s participation in the

§ 841 conspiracy.

                                             10
              Ferguson admits that his 1998 felony drug conviction

was    properly    considered     as   a   predicate      offense.       He    claims,

however, that his 1999 drug conviction was invalid because he

was not represented by counsel and that his 2002 and 2004 drug

convictions occurred after he was no longer participating in the

§ 841 conspiracy.          Thus, he claims that his trial counsel was

ineffective for not challenging the use of these convictions for

enhancement purposes.         Two prior felony drug convictions meant a

mandatory life sentence for Ferguson.                   Because he admits to one

prior conviction, all of his other convictions would have to

have been invalidated as sentence enhancers for his counsel to

have    succeeded    in    challenging          the   mandatory   life    sentence.

Therefore,    if    just    one   of   the      other    convictions     was   valid,

Ferguson’s counsel would not have been ineffective for failing

to challenge the enhancement.

            With respect to the 1999 conviction, Ferguson points

out that his presentence report (PSR) does not reflect that he

had counsel.        The PSR simply quotes a South Carolina statute

stating that indigent defendants are entitled to counsel.                       Thus,

while we do not know whether Ferguson actually had counsel, we

have no basis to determine that this conviction was definitively

invalid for enhancement purposes due to lack of counsel.                         As a

result, the record does not conclusively show that Ferguson’s

counsel in this case rendered ineffective assistance in failing

                                           11
to challenge the use of his 1999 conviction.                         In light of the

1998   conviction      and   the    absence     of    a    showing    that    the   1999

conviction cannot be counted to enhance Ferguson’s sentence, we

cannot say that “it conclusively appears from the record that

defense      counsel        did    not     provide          [Ferguson]        effective

representation”        in     failing      to        challenge        the     predicate

convictions for the § 841 enhancement.                    Benton, 523 F.3d at 435.

Ferguson’s     ineffective         assistance        claim     must    therefore     be

rejected in this direct appeal.



                                         III.

           For   the     foregoing       reasons,         Walters’    and    Ferguson’s

convictions and Ferguson’s sentence are

                                                                              AFFIRMED.




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