UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                       No. 97-4089
COURTNEY FLOYD GREGORY, a/k/a Bobby
Lee Graves, a/k/a Deangelo D. Marsh,
a/k/a Marcello N. Williams,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                     No. 97-4090

SCOTT WILLIAM LEE,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                       No. 97-4091
ERNEST STERLING WRIGHT, a/k/a Petey
Wise,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                     No. 97-4156

LARRY EUGENE REED,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Newport News.
Raymond A. Jackson, District Judge.
(CR-96-22)

Argued: March 6, 1998

Decided: June 23, 1998

Before MOTZ, Circuit Judge, PHILLIPS, Senior Circuit Judge, and
KEELEY, United States District Judge for the
Northern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Joseph Massie Durant, CUMMING, HATCHETT &
JORDAN, P.C., Hampton, Virginia, for Appellant Gregory; Stephen
King Smith, Hampton, Virginia, for Appellant Reed; James Vance
Stallings, HUDGINS & STALLINGS, Newport News, Virginia, for
Appellant Lee; James Stephen Ellenson, Newport News, Virginia, for
Appellant Wright. Michael R. Smythers, Assistant United States
Attorney, Norfolk, Virginia, for Appellee. ON BRIEF: Helen F.
Fahey, United States Attorney, Norfolk, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

In April, 1996, a federal grand jury indicted Courtney Floyd Greg-
ory, Scott William Lee, Ernest Sterling Wright and Larry Eugene

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Reed on various drugs and weapons charges. Specifically, all of the
men were charged with (1) conspiracy to distribute marijuana,
cocaine and more than 50 grams of "crack" cocaine between January
1984 and February 1996, in violation of 21 U.S.C.§ 846; and (2) dis-
tribution or possession with intent to distribute cocaine or "crack"
cocaine, in violation of 21 U.S.C. § 841(a)(1). Wright and Reed were
charged with using or carrying a firearm while trafficking in illegal
drugs, in violation of 18 U.S.C. § 924(c)(1). Wright also was charged
with possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g). The appellants were convicted by a jury on the con-
spiracy and other counts. The trial court then sentenced all of the
appellants to terms which included life imprisonment.

These appeals raise issues regarding the trial court's denial of
appellants' motion to exclude evidence of prior crimes, wrongs or
other bad acts, and the sufficiency of the government's evidence
regarding the conspiracy. The appellants also challenge the trial
court's sentencing calculations, its admission of Rule 801(d)(2)(E)
evidence and other statements, its ruling that the statute of limitations
had not run as to appellant Gregory, and the adequacy of the jury
instructions. Finally, the appellants assert that the trial court erred
when it denied their motion made on the first morning of trial to with-
draw their jury trial request. Finding no error, we affirm.

I.

The government presented 72 witnesses and 226 exhibits to dem-
onstrate the existence of a twelve (12) year conspiracy by the four
named appellants and numerous other unindicted co-conspirators to
jointly participate at various times in a venture to distribute or possess
with intent to distribute cocaine, "crack" and marijuana. The appel-
lants distributed drugs in an "open air drug market" in Den-
bigh/Newport News and the Williamsburg/Toano areas of Virginia.
They acquired drugs from the same suppliers, then distributed them
together, using and possessing firearms to protect their drugs and drug
territories.

CONSPIRACY

The government's witnesses established that (1) Gregory was a
leader in the conspiracy; (2) Reed was a supervisor, who dealt drugs

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with all of the conspirators at one time or another over the course of
the conspiracy; (3) Wright exercised decision-making authority,
recruited "runners" for the conspiracy, and claimed a larger share of
profits than most other members; and (4) Lee was a mid-level dealer.
Nevertheless, appellants contend that the evidence was insufficient to
establish the existence of a conspiracy and that they were wrongly
convicted.

Courtney Gregory

Although numerous witnesses placed the co-conspirators together,
Gregory contends that the evidence offered was insufficient to estab-
lish the existence of a conspiracy. He specifically alleges that the tes-
timony of the witnesses to various overt acts, such as drug sales,
arrests and convictions in other jurisdictions, and traffic stops, estab-
lishes only "isolated drug deals" not associated with a common con-
spiracy.

Larry Reed

Reed likewise maintains that witness testimony at trial did not suf-
ficiently connect him to the co-defendants or the conspiracy. He
argues that the government's witnesses who placed him in contact
with co-defendants offered insufficient factual proof, and he contends
that any evidence or allegations of drug sales placed him in separate
groups from his co-defendants, establishing at most only "isolated
drug deals" not associated with a common conspiracy. Reed also
argues that the government's witnesses lacked credibility, that they
failed to identify him at trial, and failed to testify as to specific dates
alleged in the indictment. For these reasons, he also contends that the
evidence as to the substantive counts against him was insufficient as
a matter of law.

Ernest Wright

Wright was incarcerated for nearly eight years of the twelve year
conspiracy, first between January 1986 and January 1991, then again
from February 1994 until the present. Consequently, his only alleged
involvement in the conspiracy was between 1992 and 1994. He main-

                     4
tains that, if anything, the government only established a separate
conspiracy with him and defendant Reed, rather than the conspiracy
among all of the defendants alleged in Count 1 of the Indictment.

Scott Lee

Lee's arguments are nearly identical to those of the other appel-
lants. He alleges that the testimony of the government's witnesses did
not sufficiently connect him to the other defendants or the conspiracy,
and that those witnesses who placed him in contact with the remain-
ing appellants or other conspirators offered insufficient factual proof
of a conspiracy. He too contends that any evidence or allegations of
drug sales placed him in separate groups and established only "iso-
lated drug deals" not associated with a common conspiracy. Lee also
maintains there was no testimony to connect him with alleged kingpin
and co-conspirator, Larry Reed.

MURDERS

The government also presented evidence regarding two murders
associated with the activities of the conspiracy. First, witnesses testi-
fied about the murder on September 25, 1988 of Maxine Amos at her
parents' home. These witnesses indicated that Reed killed Ms. Amos
when he broke into her parents' home to steal firearms that he
intended to sell to "re-up" his drug supply. Reed then boasted of this
murder to Ernest Wright, who used this knowledge to obtain work
release from prison.

Second, the government offered evidence as to the murder of Lee's
half-brother, Leroy Lee. According to witnesses, Leroy Lee owed the
conspiracy several thousand dollars for drugs he had used personally.
This drug debt so angered Scott Lee and Courtney Gregory that Greg-
ory offered Lee money to lure Leroy to Chickahominy, so that Reed
could kill him. Scott Lee even supplied Reed with the gun used to kill
Leroy Lee. While in jail, Reed boasted of killing Maxine Amos and
Leroy Lee, telling other inmates that shooting someone in the ear was
the best way to kill them. Notably, both Amos and Lee were killed
by gunshots to the ear, which a forensics expert testified was a rare
method of murder.

                     5
Despite this evidence, the appellants contend that these murders
were unrelated to the conspiracy. In support of this claim, they assert
that neither Larry Reed nor anyone else ever has been charged with
the murder of Maxine Amos or Leroy Lee. Reed argues he was preju-
diced by government testimony linking him as the"triggerman," and
Scott Lee contends that evidence linking him to his half-brother's
murder was attenuated and circumstantial, as well as unrelated to the
conspiracy. According to Lee, the evidence showed only that he and
Leroy were dealing drugs, and that their Jamaican supplier (who the
government argued was Courtney Gregory) was pressuring him to get
Leroy to pay his debts. The remaining appellants maintain they were
prejudiced by the mere introduction of evidence against Reed and
Scott Lee as to these crimes.

Simply put, appellants contend that there is no nexus between the
killings and any other count in the indictment; consequently, the trial
court should have deleted any mention of the murders from the overt
acts charged as part of the conspiracy. The government maintains that
these killings establish that the appellants, through various actions,
undertook to conceal the conspiracy and their unlawful drug activi-
ties, as well as to ensure the conspiracy's continuing success. It
argues that their violent conduct was directly related to these objec-
tives, it argues, and was properly considered by the court.

II.

The first issue is whether the district court abused its discretion in
allowing the government to introduce evidence of the shooting mur-
ders of Amos and Lee and the drug distribution activities of Courtney
Gregory. A district court's evidentiary rulings are reviewed under the
narrow abuse of discretion standard. See United States v. Sanchez,
118 F.3d 192, 195 (4th Cir. 1997). Although the appellants maintain
such testimony should have been excluded pursuant to Fed.R.Evid.
Rule 404(b), the government argues persuasively that the evidence
was not of prior bad acts but constituted substantive evidence of the
charged conspiracy.

This Court recently analyzed the admissibility of this type of evi-
dence in United States v. Grimmond, 137 F.3d 823, 831-32 (4th Cir.
1998), where the defendant appealed his conviction on federal gun

                    6
and drug charges, alleging that the trial court abused its discretion in
admitting evidence of his involvement in two shootings. Although the
defendant claimed that such evidence should have been excluded pur-
suant to Rule 404(b), we disagreed, noting that"[e]vidence of prior
bad acts is admissible if it is . . . necessary to show an essential part
of the crime. In fact, when `other crimes, wrongs or acts' evidence is
relevant to establishing an element of the offense, Rule 404(b) is not
even implicated." Id. (citations omitted). Since the challenged evi-
dence in Grimmond was used to establish an element of the offense
with which the accused was charged, we held that it did not constitute
"other crimes" evidence within the meaning of Rule 404(b).

The contested evidence in this case is nearly identical to that in
Grimmond. Testimony regarding the murders established the exis-
tence of the conspiracy and the activities undertaken by the appellants
to further its objectives. Even they admit that any evidence regarding
the murders was properly admitted if relevant to the conspiracy,
because it would be part of a single criminal episode or inextricably
intertwined. See United States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996);
United States v. Kennedy, 32 F.3d 876, 886 (4th Cir. 1994). Once
such evidence has been linked to the conspiracy, no Rule 404(b) anal-
ysis is required.

The trial court found all of the Amos and Lee murder evidence rel-
evant to the conspiracy because it was part of a single criminal epi-
sode or inextricably intertwined. For the same reasons, the court also
found that the evidence of appellant Gregory's drug distribution activ-
ities proved the conspiratorial scheme. We agree and conclude that
because this evidence did not fall within the purview of Rule 404(b),
it was properly admitted by the trial court.

III.

Although the appellants' remaining assignments of error also lack
merit, we will address them briefly.

A.

The appellants challenge the sufficiency of the evidence of the
existence of a conspiracy. An appellate court reviews the sufficiency

                     7
of evidence to support a conviction "in the light most favorable to the
government, assuming its credibility, drawing all favorable inferences
from it, and taking into account all the evidence, however adduced."
A conviction must be upheld if, in that light, " any rational trier of fact
could have found the essential elements of the crime beyond a reason-
able doubt." Jackson v. Virginia, 443 U.S. 307 (1979) (emphasis in
original); United States v. Giunta, 925 F.2d 758, 764 (4th Cir. 1991).
This standard of review is so strict that a reversal on the ground of
insufficiency of evidence should be confined to those cases in which
the failure of proof is clear. United States v. Jones, 735 F.2d 785, 791
(4th Cir.), cert. denied, 469 U.S. 918 (1984).

The record below is replete with references to countless acts
regarding the concerted drug distribution and weapons crimes of these
defendants. Numerous witnesses and exhibits supported a finding of
the existence of a conspiracy. Given the very strict standard for evalu-
ating the sufficiency of such evidence, we find that the evidence pres-
ented at trial regarding appellants' conspiracy clearly was sufficient
to uphold their convictions.

B.

The trial court properly applied the sentencing guidelines based
upon the evidence in the case and the appellants' backgrounds.

1.

At sentencing, the government can meet its burden of proving by
a preponderance of the evidence the quantity of drugs involved for
each defendant by introducing relevant and reliable evidence. United
States v. Gilliam, 987 F.2d 1009, 1013-14 (4th Cir. 1993); United
States v. Bowman, 926 F.2d 380, 381 (4th Cir. 1991); Guidelines
Manual § 6A1.3(a). Here, despite the variances about drug quantities
between the testimony at trial and the appellants' presentence reports,
the trial court carefully considered the extent of each appellant's par-
ticipation in the conspiracy, and the quantity and type of drugs fore-
seeable to that appellant within the scope of his agreement.
Accordingly, we affirm the trial court's drug quantity calculations.

                     8
2.

A sentence under the Guidelines must be calculated on the basis of
all criminal activity undertaken in concert with others, including con-
duct of others in furtherance of the execution of the jointly undertaken
activity that was reasonably foreseeable to a defendant. United States
v. Williams, 986 F.2d 86, 90-91 (4th Cir.), cert. denied, 113 S.Ct.
3013 (1993); Guidelines Manual, § 1B1.3(a)(1)(B). Even if an appel-
lant did not distribute crack cocaine himself as part of the conspiracy,
the overwhelming evidence at trial established that it was reasonably
foreseeable that "crack" cocaine was being sold by his co-defendants
and co-conspirators. For that reason, appellants' argument that they
should have been sentenced for distribution of powder cocaine rather
than "crack" cocaine clearly lacks merit in light of witness testimony
about the distribution of crack cocaine as part of the conspiracy.

3.

Appellants Gregory, Reed and Lee object to the trial court's find-
ing that a cross-reference for first degree murder that resulted in an
assessed base offense level of 43 points was warranted. All parties
agree that the trial court was permitted to consider any relevant and
reliable evidence before it to determine the relevant conduct for sen-
tencing purposes. United States v. Bowman, 926 F.2d 380 (4th Cir.
1991). Having already decided that the record establishes a direct
connection between the murders and the conspiracy, we reject any
appeal to be resentenced without a cross-reference for first degree
murder.

4.

Appellants Gregory and Reed contest the Court's imposition of a
two-level enhancement for possession of a dangerous weapon. Incred-
ibly, despite testimony from numerous witnesses about countless
threats and violent acts using firearms that occurred during the course
of the conspiracy, Reed asserts that any evidence of dangerous weap-
ons had nothing to do with the offenses charged. Likewise, Gregory
says the only evidence of a dangerous weapon concerned the Leroy
Lee murder, which he maintains was not connected to the conspiracy.
These contentions are meritless. In light of the many references in the

                    9
record to their possession and use of firearms in the course of drug
distribution activities, we reject appellants' arguments that they are
entitled to resentencing without a two-level firearms enhancement.

5.

Courtney Gregory contends that he should have been granted a
downward departure because, as an illegal alien, he is subject to more
severe penalties than a similarly situated citizen defendant. He com-
plains he will be incarcerated at a maximum detention facility until
the end of his sentence, will not be permitted to serve the last ten per-
cent (10%) of his sentence in community confinement, and, then, will
be deported.

Gregory cites no authority in support of the proposition that, as a
matter of right, he is entitled to a downward departure on this basis.
To the contrary, his illegal alien status, alone, is an inappropriate basis
for departure. See United States v. Restrepo, 999 F.2d 640, 644 (2d
Cir. 1993). Moreover, the fact that he was sentenced to life in prison
without the possibility of parole renders his argument baseless.

C.

Appellants object to the introduction of numerous co-conspirator
statements, arguing they constituted hearsay improperly introduced
under F.R.E. 801(d)(2)(E). As such decisions by a trial court are enti-
tled to great deference, this Circuit reviews questions of admissibility
of evidence only for a clear abuse of discretion. United States v.
Whittington, 26 F.3d 456, 465 (4th Cir. 1994). This same standard
applies to the admissibility of evidence pursuant to Fed.R.Evid.
801(d)(2)(E). Bourjaily v. United States, 483 U.S. 171, 181 (1987);
United States v. Clark, 986 F.2d 1252, 1255 (4th Cir. 1992).

Only one of the co-conspirator statements at issue was subject to
a Rule 801(d)(2)(E) analysis, and that statement was properly admit-
ted by the Court as a statement offered against a party during the
course of and in furtherance of the conspiracy. See United States v.
Jackson, 863 F.2d 1168, 1171 (4th Cir. 1989). All remaining co-
conspirator statements were offered pursuant to other evidentiary
rules and were not subject to the same admissibility standard.

                     10
D.

Gregory's claim that the statute of limitations expired as to his
involvement in the conspiracy also lacks merit. The statute does not
expire until five years after the last overt act occurring during the
existence of a conspiracy. Fiswick v. United States, 329 U.S. 211, 216
(1946). Since the overt act of one conspirator is attributable to all
other partners, it is logical that any overt act of any conspirator within
the applicable period provides a sufficient basis to prosecute the
remaining defendants for that offense. See Pinkerton v. United States,
328 U.S. 640, 647 (1945).

At trial, the government offered proof of the commission of an
overt act within the applicable statutory period, as required by law. In
contrast, Gregory offered no evidence to substantiate his contention
that he withdrew from the conspiracy more than five years prior to the
return of the indictment. Although such timely withdrawal would
have precluded a conspiracy conviction against him, the evidence
established that Gregory continually participated in the conspiracy
until its end. Hence, we uphold the trial court's ruling that the statute
of limitations did not bar the conspiracy charge against Gregory.

E.

Gregory also alleges that the trial court's denial of his Instruction
No. 16 regarding the conspiracy charge requires reversal of his con-
viction. Appellate courts review the decision of the trial court about
whether to give a jury instruction, and the content of that instruction,
for abuse of discretion. United States v. Russell, 971 F.2d 1098 (4th
Cir. 1992). By that standard, the trial court's jury instructions in this
case, when taken as a whole, fairly stated the controlling law regard-
ing drug conspiracies. United States v. Cobb, 905 F.2d 784, 788-89
(4th Cir. 1990), cert. denied, 498 U.S. 1049 (1991).

Gregory cannot show that the instruction he offered (1) was cor-
rect; (2) was not substantially covered by the Court's charge to the
jury; and (3) dealt with some point in the trial so important that failure
to give the requested instruction seriously impaired his ability to con-
duct his defense. United States v. Guay, 108 F.3d 545, 550 (4th Cir.
1997). In this case, due to the similarity between Instruction No. 16

                     11
as requested, and the charge as given, it is clear the trial court did not
abuse its discretion in refusing to include the excess language
requested by Gregory.

Even had the trial court erred, we have held that a conviction based
on improper jury instructions will not be reversed so long as the
instructions, as a whole, include the substance of the requested con-
spiracy charge. United States v. Dorta, 783 F.2d 1179, 1183 (4th
Cir.), cert. denied sub nom. Drum v. United States, 477 U.S. 905
(1986). The substance of the requested conspiracy charge was
included here, nullifying any claim by Gregory that the jury charge
was inadequate or improper.

F.

Finally, the lower court did not err in refusing to allow appellants
to withdraw their request for a jury trial just prior to voir dire. The
court's denial of a defendant's request for a trial to the court is
reviewed for abuse of discretion. United States v. Morlang, 531 F.2d
183, 188 (4th Cir. 1975).

Appellants argue that Fed.R.Crim.P. 23(a), which conditions a
defendant's waiver of a jury trial on the government's consent, is
unconstitutional. As the government points out, however, the consti-
tutionality of this rule was upheld in Singer v. United States, 380 U.S.
24, 36 (1965) (holding that there is no constitutional impediment to
conditioning a waiver of the right to trial by jury on the consent of
the prosecuting attorney and the trial judge). Likewise, the Court
upheld the requirement of the rule that consent of the prosecutor and
approval of the court be obtained to a defendant's waiver of a jury
trial. Id.

Where the government objects to a defense motion to proceed
without a jury, and the defense offers no evidence to establish that the
government's insistence on trial by jury would result in the denial to
the defendants of an impartial trial, a trial court is within its discretion
in denying the defendant's request. Singer, 380 U.S. at 37-38. Here,
the reasons offered -- too few African-Americans in the jury pool
and an "enormous amount of 404(b) evidence"-- are not sufficiently

                     12
compelling to require the court and government to consent to appel-
lants' last minute waiver of the right to a trial by jury.

IV.

For the foregoing reasons, the appellants' convictions are

AFFIRMED.

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