UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                       No. 95-5059
COREY STEVEN JOHNSON, a/k/a Little
Corey,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CR-93-419)

Submitted: December 14, 1995

Decided: January 5, 1996

Before ERVIN, Chief Judge, and WIDENER and WILKINS,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William B. Purpura, Baltimore, Maryland, for Appellant. Lynne A.
Battaglia, United States Attorney, Andrea L. Smith, Assistant United
States Attorney, Susan M. Ringler, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Corey S. Johnson ("Little Corey") was convicted by a jury of con-
spiracy to distribute and possess with intent to distribute heroin, 21
U.S.C.A. § 846 (West Supp. 1995), and was sentenced to a term of
420 months. Johnson appeals his conviction on the ground that the
district court plainly erred in allowing the prosecutor to put improper
questions to a witness and that his attorney was ineffective in failing
to object. He also appeals his sentence, alleging that the district court
clearly erred in finding that he was a manager or supervisor, USSG
§ 3B1.1(b),1 and erred in departing upward on unreliable evidence of
his involvement in a fatal shooting, USSG § 5K2.1, p.s., and on inad-
equate evidence of his involvement in the arson of a dry cleaning
store, USSG § 5K2.5, p.s. Finding no error, we affirm.

At Johnson's trial, Givette Hogan testified for the government that
during the first half of 1991 she worked for an organization known
at the time as "Strong as Steel," which distributed heroin in an area
of Baltimore, Maryland, and was run by Johnson's cousin, Corey
Woodfolk ("Big Corey"). Hogan distributed heroin daily from various
stash houses. She testified about the numerous other members of the
conspiracy and the function each performed during the time she knew
them. She testified that Woodfolk and Johnson both had police scan-
ners and that they decided which stash house would be used on a
given day. Johnson personally woke Hogan each morning and made
sure she was at the stash house by 10:00 a.m. He also gave her the
heroin supply for the day.

Hogan testified that in the spring of 1991 Woodfolk and Johnson
were angry about two drug dealers from a rival organization selling
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1 United States Sentencing Commission, Guidelines Manual (Nov.
1994).

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in their area despite warnings to stay away. On Easter Sunday, in
Hogan's presence, Woodfolk and Johnson ordered two Strong as
Steel members, Boss and Diamond, to get out their guns because the
rival dealers were back. Outside, Woodfolk and Johnson gestured
toward the two dealers, who were immediately shot, one of them
fatally.

Hogan also testified that during the spring Woodfolk expressed a
desire to kill or frighten the owner of a dry cleaning business across
the street from one of the Strong as Steel stash houses. The man had
complained to police about drug activity near his store more than
once. Johnson heard Woodfolk's threats. In September 1991, while
Hogan was in jail, the dry cleaners was burned by arsonists. Johnson
was also implicated in the December 1992 murder of Dwayne Oliver,
another drug dealer, by Marian Cheatham, who testified at Johnson's
trial that she saw Johnson shoot Oliver.2

Johnson first argues that the district court committed plain error in
allowing the prosecutor to ask Hogan whether she and others worked
for an "organization" called Strong as Steel and to continue to use the
term "organization" in questioning her. Johnson maintains that the
government was thus permitted to assume the existence of a conspir-
acy without ever proving its existence. He further claims that his
attorney was ineffective in failing to object to the prosecutor's ques-
tions.

To reverse a conviction for plain error, the appeals court must find
that an error occurred which was plain and which seriously affected
the fairness, integrity or public reputation of the trial. United States
v. Olano, ___ U.S. ___, 61 U.S.L.W. 4421 (U.S. Apr. 26, 1993) (No.
91-1306); United States v. Brewer, 1 F.3d 1430, 1434-35 (4th Cir.
1993). To convict Johnson of conspiracy, the government had to
prove (1) an agreement between two or more persons to violate the
federal controlled substance laws, and (2) Johnson's willful joinder in
that agreement. United States v. Clark, 928 F.2d 639, 641-42 (4th Cir.
1991). Because Hogan's testimony amply established the existence of
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2 Cheatham's testimony was not included in the joint appendix, but
information about the murder is contained in the presentence report.

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a heroin conspiracy and Johnson's willing participation in it, we find
that no plain error occurred.3

With regard to his sentence, Johnson argues that his role was
menial rather than managerial, that he was no more than a runner
working at the lowest point in the conspiracy's hierarchy. The district
court found that Johnson acted as more than a mere courier when he
took the daily supply of heroin to Hogan and made sure the stash
house was open and functioning at the start of the day. In addition,
the court found that Johnson played a supervisory role in keeping
order among the addicts lined up outside the stash house, an activity
which Johnson acknowledges. The determination of the defendant's
role in the offense is a factual question reviewed under the clearly
erroneous standard. United States v. Harriott , 976 F.2d 198, 202 (4th
Cir. 1992). We do not find clear error here.

Last, Johnson challenges the district court's 2-level upward depar-
tures for murder and arson.4 Departures are reviewed under the four-
part test set out in United States v. Hummer, 916 F.2d 186, 192 (4th
Cir. 1990), cert. denied, 499 U.S. 970 (1991). Both death and prop-
erty damage which are not taken into account by the guideline appli-
cable to the offense of conviction are factors on which departures may
be based. USSG §§ 5K2.1, 5K2.5. We review the district court's find-
ings that the alleged circumstances are factually supported under the
clearly erroneous standard, and review its decision to depart and the
extent of the departure for abuse of discretion. Id.
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3 The government invites us to examine the trial transcript for the testi-
mony of other witnesses not included in the joint appendix. All portions
of the record to which the parties wish to direct the attention of the court
should be in the joint appendix. Fed. R. App. 30(a), (b). The burden of
compliance with the rule is borne by both parties. United States v. Banks,
10 F.3d 1044, 1050 n.1 (4th Cir. 1993), cert. denied, ___ U.S. ___, 62
U.S.L.W. 3755 (U.S. May 16, 1994) (No. 93-8404) and 62 U.S.L.W.
3825 (U.S. June 13, 1994) (No. 93-8056).
4 Johnson does not contest a third 2-level departure for unlawful
restraint, USSG § 5K2.4, based on his participation in a robbery of yet
another drug dealer.

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Johnson argues that Marian Cheatham's testimony about his mur-
der of Dwayne Oliver was unreliable because (1) she was a drug
addict, (2) her statement about where Oliver was shot differed slightly
from the autopsy report, and (3) she initially accused another conspir-
ator of shooting Oliver. The district court agreed that Cheatham's tes-
timony would not establish Johnson's guilt beyond a reasonable
doubt. However, having heard Cheatham testify, the district court
found that she was believable and found by a preponderance of the
evidence that Johnson had committed the murder. As the party chal-
lenging this finding, it was Johnson's burden to include Cheatham's
testimony in the materials presented on appeal. Notwithstanding this
omission, which prevents us from reviewing her testimony, we are
satisfied that there was factual support for the finding that Johnson
had participated in one or more murders. We find that the district
court's decision to depart by two levels was not an abuse of discre-
tion.

Johnson claims that the court lacked factual support for its finding
that the arson of the dry cleaners was reasonably foreseeable to him.
Hogan testified that both she and Johnson were present when Wood-
folk discussed various ways of intimidating the owner of the cleaners,
among them burning the building. The court found that Johnson was
involved in the violent side of the conspiracy as well as the distribu-
tion aspect, and that the arson was thus foreseeable to him and a fac-
tor for which a departure should be made in his case. We find that the
district court neither clearly erred in the former finding nor abused its
discretion in the latter finding. The extent of the departure was also
reasonable.

Accordingly, we affirm the conviction and the sentence. 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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