                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 12-4573


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

TERENCE WATSON,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:11-cr-00330-FL-1)


Submitted:   June 12, 2013                  Decided:   August 6, 2013


Before AGEE, FLOYD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David L. Neal, Hillsborough, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Assistant United States Attorney, Kristine L. Fritz,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      A    federal     jury      convicted        Appellant      Terence       Watson    of

conspiracy     to     distribute            and   possession        with       intent    to

distribute 280 or more grams of cocaine base.                              The district

court sentenced Watson to 222 months’ imprisonment.                            On appeal,

Watson alleges that there was insufficient evidence to support

his conviction.       He also argues that his due process rights were

violated when the government superseded the original indictment

to add the above mentioned drug conspiracy charge.                                  For the

reasons explained below, we affirm his conviction.



                                             I.

      Watson was indicted on October 25, 2011, for being a felon

in   possession      of   a     firearm      on   or   about     July    24,    2009,    in

violation of 18 U.S.C. § 922(g)(1).                      Watson was arrested on

November 9,     2011.         At     his    detention    hearing,       the    magistrate

judge found that the evidence against Watson was “strong,” as it

included     testimony          of     confidential         informants,         telephone

conversations        preceding        the     purchase      of    the    firearm,       and

recordings at the time of the transaction.                       The magistrate judge

also inquired as to why the government took over two years to

indict     Watson.        The      government      argued      that     the    delay    was

necessary     because      Watson’s         actions     were     part    of     a    larger

investigation.       On January 9, 2012, Watson pleaded not guilty to

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the charge.         After conferring with the parties, the court set

trial for April 6, 2012.

       On March 28, 2012, the grand jury returned a superseding

indictment     charging      Watson        with    conspiracy        to     distribute        and

possession        with   intent     to     distribute         280    or     more      grams      of

cocaine base in violation of 21 U.S.C. § 846.                               The grand jury

also   charged      Watson     with      being     a   felon        in    possession        of    a

firearm,     as    charged     in    the    original      indictment.                The    court

called a pretrial hearing on April 5, 2012.                               At this hearing,

the court expressed “its dismay at the manner in which this case

was promoted for trial by the government.”                          Instead of seeking a

continuance,        however,        Watson        indicated         that        it    was     his

preference to commence with trial as planned.                               The government

explained that up until February 29, 2012, it did not possess

enough      information      to     indict    Watson      on        conspiracy        charges.

However,      on    this     date     it     received         correspondence           from       a

cooperating        defendant      offering        to   provide           information        about

Watson.       The government then gave notice to Watson’s counsel

that   it    anticipated       receiving      new      information          about      Watson’s

involvement in dealing crack cocaine.                          The government states

that prior to filing a superseding indictment it gave Watson the

option of pleading guilty to the firearms charge.                                    Apparently

plea   negotiations        failed.         Watson      then    moved       to    dismiss      the

superseding indictment, arguing that it violated his due process

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rights because of the timing of its issuance.                       He also argued

that the indictment constituted vindictive prosecution because

it was filed in response to his decision to plead not guilty and

proceed to trial.         The court denied the motion.

        Watson     then    pleaded      not    guilty       to     the        superseding

indictment and trial commenced on April 6, 2012.                         At trial the

government       presented    evidence    from     cooperating      witnesses             Tony

Blanchard, Deon Boston, and Lawrence Sharpe; testimony from a

confidential       informant,      Priscilla     Hudson;     and    testimony             from

several law enforcement officers.                  The confidential informant

testified as to her dealings with Watson, as well as with others

involved     in    dealing     crack    cocaine.      She    confirmed             that    she

purchased        from    Blanchard     marijuana      and    cocaine          in     several

controlled buys.          She then contacted Blanchard about purchasing

a firearm.         Hudson identified, through a recording, Watson as

the supplier of the firearm.              Blanchard confirmed this fact as

well.       Blanchard        was   subsequently       arrested.               During       his

interviews,       Blanchard    explained      that    he    and   Boston           regularly

dealt drugs together.          Boston was his most regular supplier, but

he confessed to buying one to two grams of crack cocaine from

Watson a few times a month in 2008 and 2009.

     Boston       also    testified      at   trial     pursuant         to     his       plea

agreement.        Boston testified that he observed Watson sell to

Blanchard about five to ten times.               He also admitted that he and

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Watson sold cocaine from the same vehicle two or three times

each month and that they would borrow ounces of crack cocaine

from each other depending upon supply.                           He went on to explain

that he was familiar with Watson’s hiding places for his drug

stash.

    Sharpe testified at trial pursuant to a plea agreement.

Sharpe’s primary occupation was selling drugs along with his

partner,    Shonte        Fleming,        and    his      main     supplier    was    Boston.

However, after Boston’s arrest, Sharpe turned to Watson as his

supplier.     He testified to seeing Boston and Watson together at

Boston’s    residence.             And,    he    testified         that   he   purchased      at

least one ounce at least two to three times a week from Watson,

which he could then split into smaller quantities and resell to

about fifteen to twenty people.

     Based    on      the    above      testimony,         the     government       sought    to

establish    a   conspiracy.              The    government         sought     to   establish

ongoing    relationships           between       Watson      and     Boston,    Boston       and

Sharpe, and Sharpe and Fleming.                        The government explained that

Boston and Watson were working together to continue to supply

cocaine to the same customers.                   At the close of the government’s

evidence,    Watson         made    a     Rule       29   motion    for    acquittal.         He

renewed this motion at the close of trial, arguing vindictive

prosecution      as   a     due    process       violation.          The   district     court

denied all motions.               The jury then found Watson guilty of the

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drug   conspiracy     charge    and    not     guilty   of    possession      of     a

firearm.       The   district   court        then   sentenced   Watson     to      222

months’    imprisonment.        Watson       timely   appealed,   and    we     have

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 3742(a).



                                       II.

       This Court reviews de novo a district court’s denial of a

motion for judgment of acquittal.              United States v. Osborne, 514

F.3d 377, 385 (4th Cir. 2008).                  This Court must affirm the

verdict “if there is substantial evidence, taking the view most

favorable to the government.”            United States v. Moye, 454 F.3d

390, 394 (4th Cir. 2006) (en banc) (quoting                  Glasser v. United

States, 315 U.S. 60, 80 (1942)).

       “A defendant challenging the sufficiency of the evidence to

support his conviction bears ‘a heavy burden.’”                   United States

v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).                      To prove a

conviction for a drug conspiracy the government must show: “(1)

an agreement between two or more persons to engage in conduct

that violates a federal drug law, (2) the defendant’s knowledge

of the conspiracy, and (3) the defendant’s knowing and voluntary

participation in the conspiracy.”              United States v. Kellam, 568

F.3d    125,   139   (4th   Cir.      2009)     (quoting     United   States        v.

Strickland, 245 F.3d 368, 384-85 (4th Cir. 2001)).



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       The      government          presented       sufficient            evidence        of    a

conspiracy here.             The evidence showed that Watson and Boston

agreed to sell crack cocaine together, including when they sold

crack cocaine together out of a car.                       As this Court has noted,

“the    proof    of     an    agreement      ‘need       not    be   direct’-it          may   be

inferred from circumstantial evidence.”                        Kellam, 568 F.3d at 139

(quoting United States v. Ellis, 121 F.3d 908, 922 (4th Cir.

1997)).      A defendant’s “relationship with other members of the

conspiracy,       the      length     of     this       association,         his     attitude,

conduct, and the nature of the conspiracy” can all be used to

show the existence of and participation in a conspiracy.                                 United

States v. Brown, 856 F.2d 710, 711 (4th Cir. 1988) (quoting

United States v. Collazo, 732 F.2d 1200, 1205 (4th Cir. 1984)).

Watson and Boston also borrowed drugs from each other to supply

the demands of consumers.                  There was evidence that Boston knew

where    Watson       kept    his    supply       and    that    they       both     conducted

business in each other’s presence.                       Their customers were also

aware that Watson could meet their demands when Boston could

not.    Furthermore, Watson had regular dealings with Blanchard to

sell him one to two ounces as needed and to sell to Sharpe

several      times     a     week.     The       duration      and    frequency          of    the

interactions         and     drug    sales       all    showed       that     a     conspiracy

existed.        These agreements “made in addition to or beyond the

bare    buy-sell        transaction        may     be    taken       to     infer    a    joint

                                              7
enterprise . . . and thereby support finding of conspiracy.”

United States v. Edmonds, 679 F.3d 169, 174 (4th Cir. 2012).

Here there is ample evidence that Watson, Boston, and others

agreed to distribute drugs within a certain area and that they

facilitated each other’s efforts to that end.                      In sum, there is

sufficient        evidence     to    support        Watson’s       conviction     for

distribution and possession with the intent to distribute crack

cocaine.



                                       III.

     This Court reviews de novo a district court’s ruling on a

vindictive prosecution motion.               United States v. Wilson, 262

F.3d 305, 316 (4th Cir. 2001).                 Watson contends that his due

process rights were violated by the “sloppy manner in which the

government sought harsher punishment based on slight evidence a

week before trial in order to intimidate [him] into giving up

his right to a jury trial.”             The burden is on Watson to prove

either actual vindictiveness or “circumstances that support a

presumption       of    vindictiveness        and    thereby        shift   to    the

government the burden of justifying its conduct.”                      Id. at 317.

Watson     argues      that   the   proceedings       show     a    presumption   of

vindictiveness.        We are unconvinced.

     The Supreme Court has held that vindictiveness cannot be

shown    by   a   prosecutor’s      decision    to    seek   additional     charges

                                         8
against     a      defendant       who      decides        to    plead        not     guilty.

Bordenkircher v. Hayes, 434 U.S. 357, 364-65 (1978).                                The Court

suggested that there were limits on the prosecutor’s discretion.

For   example,        the    decision     could      not    be    based       on    “race    or

religion.”       Id. at 364.           However, a “course of conduct engaged

in by the prosecutor in this case, which no more than openly

presented       the    defendant       with   the    unpleasant         alternatives         of

forgoing trial or facing charges on which he was plainly subject

to prosecution, did not violate the Due Process Clause of the

Fourteenth Amendment.”            Id. at 365.         Watson’s reliance on Lafler

v. Cooper, 132 S. Ct. 1376 (2012), and Missouri v. Frye, 132 S.

Ct. 1399 (2012), is misplaced.                    Lafler and Frye addressed the

Sixth Amendment right to effective counsel and recognized the

necessity of that right during the negotiation and plea process.

These     cases,      quite      frankly,     have     nothing         to   do      with    the

prosecutor’s conduct or discretion to bring charges as he or she

chooses.

      In this case, there was nothing wrong with the prosecutor’s

decision to seek harsher charges should Watson choose not to

plead     guilty.           As   the    Supreme      Court       has    decided,       “While

confronting a defendant with the risk of more severe punishment

clearly    may     have      a   ‘discouraging       effect       on    the      defendant's

assertion of his trial rights, the imposition of these difficult

choices    [is]       an    inevitable’-and       permissible-‘attribute              of    any

                                              9
legitimate system which tolerates and encourages the negotiation

of pleas.’”   Bordenkircher, 434 U.S. at 364 (quoting Chaffin v.

Stynchcombe, 412 U.S. 17, 31 (1973)).   Thus, Watson has failed

to show any vindictiveness of the part of the prosecution, and

his claim fails.



                               IV.

     Finding no error, this case is



                                                       AFFIRMED.




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