UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 94-5799
JERMAINE MAURICE PADGETT, a/k/a
Maurice,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 94-5800
CARLOS EMANUEL KINARD, a/k/a
Carlos,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CR-93-215-MU)

Submitted: November 15, 1995

Decided: March 1, 1996

Before WILKINSON, Chief Judge, and LUTTIG and MOTZ,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

George V. Laughrun, II, GOODMAN, CARR, NIXON,
LAUGHRUN & LEVINE, P.A., Charlotte, North Carolina; Randolph
Marshall Lee, Charlotte, North Carolina, for Appellants. Mark T. Cal-
loway, United States Attorney, Gretchen C.F. Shappert, Assistant
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Unpublished opinions are not binding precedent in this circuit.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:

In these consolidated appeals, Carlos Emanuel Kinard (No. 94-
5800) and Jermaine Maurice Padgett (No. 94-5799) appeal their jury
convictions for various crimes related to their participation in a RICO
conspiracy and several underlying predicate acts, as well as various
drug and firearm offenses. Kinard and Padgett raise several arguments
on appeal. They claim the Government failed to establish an interstate
commerce nexus and that the evidence was insufficient to sustain
their convictions. Padgett also claims the trial court incorrectly admit-
ted several prior consistent statements, refused to allow his request to
argue potential punishments to the jury, provided the jury with an
incorrect definition of reasonable doubt, sentenced him under the
standards for first degree murder, and subjected him to double jeop-
ardy by sentencing him to the RICO conspiracy count and the con-
spiracy's underlying predicate acts. Finding no error, we affirm the
convictions of both Appellants.

I.

The Government presented evidence of Kinard and Padgett's
involvement in the "Flowe Organization," which was led by Angelo
and David Flowe. The Organization sold and distributed cocaine base

                     2
in Charlotte, North Carolina through its several members--including
Kinard and Padgett. Members of the Organization also committed
various acts of violence in furtherance of the Organization's purpose,
including robbery, assault, kidnapping, and murder. Several co-
conspirators were indicted with Kinard and Padgett but accepted plea
agreements and testified that Padgett helped kidnap Darryl Brown,
who owed a drug debt to another member of the Flowe Organization.
Padgett drove Brown to South Carolina, forced him to disrobe, and
left him naked and stranded ("the kidnapping"). The Government's
witnesses also testified that on another occasion, Padgett planned to
purchase drugs from Steve Staton and Derrick Drakeford behind a car
wash; instead of purchasing the drugs, Padgett killed Staton, and other
Organization members killed Drakeford ("the car wash murders").
The witnesses also testified that on another occasion, Padgett and
Kinard were involved in a robbery in which they kidnapped and
assaulted several people, and Kinard killed Richard Wright ("the
home invasion").

II.

Kinard and Padgett claim the Government failed to present suffi-
cient evidence of an interstate commerce nexus to justify federal pros-
ecution. This issue is reviewed de novo, as an interstate commerce
nexus is "a `jurisdictional peg' on which to hang the federal prosecu-
tion." United States v. Darby, 37 F.3d 1059, 1067 (4th Cir. 1994),
cert. denied, ___ U.S. ___, 63 U.S.L.W. 3787 (U.S. May 1, 1995)
(No. 94-7778). To meet the interstate commerce requirement, the
government need not show that the defendant had knowledge of the
interstate connection, id., or that the acts of racketeering themselves
directly involved interstate commerce. United States v. Allen, 656
F.2d 964, 964 (4th Cir. 1981).

Kinard and Padgett stipulated that the firearms they used in each
offense traveled through interstate commerce. We find this conces-
sion sufficient to establish the interstate commerce nexus.

III.

Kinard and Padgett claim the evidence was insufficient to sustain
their convictions. Challenges to the sufficiency of the evidence are

                    3
reviewed by viewing the evidence in the light most favorable to the
prosecution, including all reasonable inferences that can be drawn
from the evidence. Glasser v. United States, 315 U.S. 60, 82 (1942);
United States v. Russell, 971 F.2d 1098, 1109 (4th Cir. 1992), cert.
denied, ___ U.S. ___, 61 U.S.L.W. 3479 (U.S. Jan. 11, 1993) (No.
92-6632). Additionally, it is within the sole province of the jury to
assess the credibility of witness testimony, and this court will not
question those assessments. Russell, 971 F.2d at 1109.

To establish a RICO claim under § 1959, the government must
prove

          (1) that the organization was a RICO enterprise, (2) that the
          enterprise was engaged in racketeering activity as defined in
          RICO, (3) that the defendant in question had a position in
          the enterprise, (4) that the defendant committed the alleged
          crime of violence, and (5) that his general purpose in so
          doing was to maintain or increase his position in the enter-
          prise.

United States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994), cert. denied,
___ U.S. ___, 63 U.S.L.W. 3627 (U.S. Feb. 21, 1995) (No. 94-7544).
The defendant's general purpose for his crimes of violence also may
be pecuniary gain. 18 U.S.C. § 1959(a) (West Supp. 1995).

A RICO enterprise is defined as "any union or group of individuals
associated in fact although not a legal entity, which is engaged in, or
the activities of which affect, interstate or foreign commerce." 18
U.S.C.A. § 1959(b)(2) (West Supp. 1995). The enterprise can be for-
mal or informal, and embody the concepts of continuity, unity, shared
purpose and an identifiable structure. Fiel, 35 F.3d at 1003. Racke-
teering activity is defined as any act or threat involving murder, kid-
napping, robbery and drug dealing. 18 U.S.C.A. § 1961(1) (West
Supp. 1995).

The Government presented sufficient evidence that the Flowe
Organization was a RICO enterprise engaged in racketeering activity.
The Government's witnesses testified that the Organization was
established by the Flowe brothers for the express and inferred purpose
of selling and distributing cocaine base in the Charlotte area. The

                    4
Organization was a continuous enterprise that operated from 1989
until 1993, and each member had the shared purpose of profiting from
the illegal drug sales.

Further, the Government presented sufficient evidence of the
Flowe Organization's racketeering activities. The Government's wit-
nesses testified that the kidnapping was carried out for the express
purpose of persuading Darryl Brown to repay a drug debt, that the car
wash murders were conducted for the express purpose of stealing
cocaine and money from the victims, and that the home invasion was
conducted with the desire to steal money from and harm a rival drug
dealer.

Next, Kinard and Padgett also challenge the sufficiency of the evi-
dence for proof of their motive to commit the violent acts. To estab-
lish motive, the Government must prove that Kinard and Padgett
committed the acts of violence either to maintain or increase their
positions in the Flowe Organization, or for pecuniary gain. 18
U.S.C.A. § 1959(a) (West Supp. 1995). The evidence established that
Kinard and Padgett committed their acts of violence for pecuniary
gain; both received money stolen from the victims of the home inva-
sion, and Padgett received money stolen from the victims of the car
wash murders. Additionally, while Padgett did not personally receive
money from Darryl Brown, his kidnapping was motivated by a desire
to force Brown's repayment of a drug debt owed to another Flowe
Organization member.

Kinard also challenges the sufficiency of the evidence to convict
him of conspiracy under 21 U.S.C. §§ 841(a)(1), 846 (1988). These
statutes proscribe the manufacture, distribution, or possession of a
controlled substance with the intent to manufacture, distribute or dis-
pense, and the conspiracy thereof. A conspiracy exists when two or
more people enter into an agreement to commit an unlawful act.
United States v. Bell, 954 F.2d 232, 236 (4th Cir. 1992). The govern-
ment must establish that a conspiracy existed, the defendant had
knowledge of the conspiracy, and that the defendant voluntarily
became a part of the conspiracy. Id. A defendant may be convicted
of participation in a conspiracy if he enters it"with an understanding
of the unlawful nature thereof and willfully joins in the plan one occa-
sion . . . even though he played only a minor part." United States v.

                    5
Roberts, 881 F.2d 95, 101 (4th Cir. 1989). The testimony of co-
conspirators, standing alone and uncorroborated, may provide a basis
for conviction. United States v. Burns, 990 F.2d 1426, 1439 (4th Cir.),
cert. denied, ___ U.S. ___, 61 U.S.L.W. 3819 (U.S. June 17, 1993)
(No. 92-8621).

Here, the Government presented several witnesses/co-conspirators
who testified that Kinard sold drugs for the Flowe Organization.
Kinard and each co-conspirator had an express or implied agreement
to sell and distribute cocaine. While Kinard challenges the credibility
of these witnesses, that issue is not before the court, as witness credi-
bility is an issue within the sole province of the jury. See Russell, 971
F.2d at 1109. Thus, the evidence was sufficient for a rational trier of
fact to find Kinard guilty.

IV.

Padgett also raises several arguments concerning the trial and sen-
tencing phases of his case. First, he challenges the admissibility of
certain statements made by government witnesses that Padgett claims
were improper prior consistent statements. As Padgett failed to raise
this issue at trial, it is subject to the plain error standard of review.
Issues raised for the first time on appeal are forfeited unless they con-
stitute plain error. United States v. Olano, ___ U.S. ___, 61 U.S.L.W.
4421 (U.S. Apr. 26, 1993) (No. 91-1306); see also, Fed. R. Crim. P.
52(b). To constitute plain error, the claim (1) must be an error; (2)
must be an error clear under current law; (3) must affect substantial
rights to the extent that it affects the outcome of the trial; and (4) must
seriously affect the fairness, integrity, or public reputation of judicial
proceedings. Id.

A prior consistent statement may not be admitted unless it serves
to rebut a recent charge of fabrication or improper motive. Fed. R.
Crim. P. 801(d)(1)(B). Here, co-conspirators William Ray England
and Larry McConneyhead testified to Padgett's involvement in the
home invasion. The court then allowed Police Officer Scott Maxfield
to read into evidence the statement England gave him upon arrest,
which did not mention Padgett's name. Later, Police Investigator
James Hollingsworth corroborated McConneyhead's testimony that
he gave several people, including Padgett, the guns used in the home

                     6
invasion. Hollingsworth also testified that he took a statement from
another government witness, but did not testify to the substance of
that statement.

We need not address whether the police officers' testimony vio-
lated Rule 801, as any possible violation would not constitute plain
error. The evidence against Padgett was voluminous, with witness tes-
timony from his co-conspirators and the victims of his crimes. The
witnesses placed Padgett at the scene of the home invasion, and
recounted his actions during the event. Even without the contested
testimony of the police officers, the remaining evidence was sufficient
to support the jury's guilty verdict.

Padgett also claims the district court erred by refusing his request
to argue potential punishments to the jury. However, a district court
has broad discretion in managing closing arguments, especially when
the arguments relate to the respective functions of the court and jury.
See, e.g., People v. Ignacio, 852 F.2d 459, 462 (9th Cir. 1988). In the
federal system, the court has exclusive authority over punishment; the
jury's sole function is the determination of guilt or innocence. See
United States v. Del Toro, 426 F.2d 181, 184 (5th Cir.), cert. denied,
400 U.S. 829 (1970). Thus, the district court did not abuse its discre-
tion.

Padgett further claims that the district court erred by sentencing
him to the predicate act of first degree murder and using that predicate
act to establish the sentence for other offenses. Padgett claims that
neither the indictment nor the jury charge specified a degree of homi-
cide, and requests a rehearing for sentencing to determine the correct
degree. Padgett did not raise this issue below; thus, it is subject to the
plain error standard of review.

Padgett incorrectly describes the indictment and jury charge. The
indictment stated that he was charged with racketeering activities,
including "murder" as defined by N.C. Gen. Stat. § 14-17 (Michie
1993), which proscribes first and second degree murder. Additionally,
the court's charge to the jury specifically referred to first degree mur-
der. Further, the homicidal acts of Padgett and his co-conspirators sat-
isfy the elements of first degree murder, which includes wilful,
deliberate, and premeditated killing and homicide that occurs during

                     7
the commission of a felony. N.C. Gen. Stat. § 14-17 (Michie 1993).
The evidence established that Padgett planned the car wash murders
well in advance; additionally, the home invasion murder of Richard
Wright occurred during the perpetration of a robbery.

Next, Padgett claims that the district court provided the jury with
an incorrect definition of reasonable doubt. As he did not raise an
objection at trial, this issue is reviewed for plain error.

Judicial efforts to define reasonable doubt are disfavored, absent a
specific request from the jury. United States v. Headspeth, 852 F.2d
753, 755 (4th Cir. 1988). However, not all attempts to define reason-
able doubt constitute reversible error per se. United States v. Moss,
756 F.2d 329, 333 (4th Cir. 1985). The disputed language must be
viewed in the entire context of the jury charge. See Victor v.
Nebraska, ___ U.S. ___, 62 U.S.L.W. 4179 (U.S. Mar. 22, 1994)
(Nos. 92-8894, 92-9049).

Padgett claims the following instruction provided the jury with an
incorrect definition of reasonable doubt:

          If the evidence is sufficient to overcome the presumption
          of innocence and to convince you beyond a reasonable
          doubt of the guilt of a defendant as to any charge, then it
          would be your duty to find him guilty of that charge; but if
          you have a reasonable doubt as to the guilt of a defendant
          on any charge, it would be your duty to give him the benefit
          of that doubt and acquit the defendant on that charge.

          The term "reasonable doubt" means just what it says. It
          is a doubt based upon reason and common sense. Its mean-
          ing is no doubt self-evidence and understood by you, and
          the Court will not attempt to define the term further.

This excerpt must be read in context with the entire jury charge,
though, which also stated:

          [T]he law presumes a defendant to be innocent of crime, and
          this presumption continues throughout the course of the

                    8
          trial. It could come to an end only if you . . . arrive unani-
          mously at the conclusion, if you do, that the government has
          shown to your satisfaction that a defendant is guilty beyond
          a reasonable doubt . . . . This burden on the government
          does not change at any time during the course of the trial.
          The presumption of innocence in favor of a defendant is not
          a mere formality to be disregarded by the jury at its plea-
          sure, it is a substantive part of our criminal law.

When read in context with the entire jury charge, the district court's
charge was not plainly erroneous.

Finally, Padgett also claims the district court subjected him to dou-
ble jeopardy by indicting, convicting, and sentencing him to both the
predicate acts underlying the RICO conspiracy count, and the conspir-
acy count itself. As Padgett failed to raise this issue below, it is sub-
ject to plain error analysis.

Padgett's claim is without merit. The prosecution and sentencing
of a defendant to both RICO conspiracy and the predicate offenses
does not violate double jeopardy. United States v. West, 877 F.2d 281,
292 (4th Cir.), cert. denied, 493 U.S. 959 (1989) (holding that
offenses under 18 U.S.C.A. §§ 1962(c) and (d) do not constitute the
same offense).

Accordingly, we affirm Kinard and Padgett's convictions. We dis-
pense 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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