Filed: Feb. 12, 1996
Latest Update: Feb. 12, 2020
Summary: Filed: February 12, 1996 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 95-5043 (CR-94-5-4) United States of America, Plaintiff - Appellee, versus Stephen Jones, etc., Defendant - Appellant. O R D E R The Court amends its opinion filed December 28, 1995, as follows: On the cover sheet, section 3, line 4 - the lower court number is corrected to read " CR-94-5-4." For the Court - By Direction /s/ Bert M. Montague Clerk UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT U
Summary: Filed: February 12, 1996 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 95-5043 (CR-94-5-4) United States of America, Plaintiff - Appellee, versus Stephen Jones, etc., Defendant - Appellant. O R D E R The Court amends its opinion filed December 28, 1995, as follows: On the cover sheet, section 3, line 4 - the lower court number is corrected to read " CR-94-5-4." For the Court - By Direction /s/ Bert M. Montague Clerk UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UN..
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Filed: February 12, 1996
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 95-5043
(CR-94-5-4)
United States of America,
Plaintiff - Appellee,
versus
Stephen Jones, etc.,
Defendant - Appellant.
O R D E R
The Court amends its opinion filed December 28, 1995, as
follows:
On the cover sheet, section 3, line 4 -- the lower court
number is corrected to read " CR-94-5-4."
For the Court - By Direction
/s/ Bert M. Montague
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5043
STEPHEN JONES, a/k/a Tomeek
Stefon,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Shelby.
Richard L. Voorhees, Chief District Judge.
(CR-94-5-4)
Submitted: November 30, 1995
Decided: December 28, 1995
Before HALL and HAMILTON, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Roger T. Smith, Asheville, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, Jerry W. Miller, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant, Stephen Jones, appeals the jury's verdict finding him
guilty of conspiracy to possess with intent to distribute in excess of
fifty grams of crack cocaine1 and his sentence of 330 months incarcer-
ation. Jones contends that the jury's verdict should be overturned and
a retrial granted because of alleged errors by the district court. Specif-
ically, Jones alleges that the district court erred by: (1) denying his
motion to suppress evidence obtained in a search of a co-conspirator's
mail; (2) denying his motion for acquittal; (3) admitting testimony
and evidence regarding the crack cocaine; (4) enhancing his sentence
pursuant to United States Sentencing Commission, Guidelines
Manual, § 3B1.1(a) (Nov. 1994), for being an organizer or leader of
a criminal activity; and (5) denying his motion to appoint his own
expert witness to weigh the crack cocaine. Jones also contends that
he was denied due process because of the jury's racial composition.
We have reviewed the record and find no reversible error. Accord-
ingly, we affirm Jones's conviction and sentence.
First, Jones asserts that the court improperly denied his motion to
suppress evidence obtained in a search of a co-conspirator's mail. We
review de novo the district court's conclusion that Jones, who did not
reside at the address on the package, had no standing to challenge the
validity of the search.2 Jones did not put his name or address on the
package,3 nor did he acknowledge that he had sent the package to the
co-conspirator.4 Thus, Jones's claim is without merit because he
_________________________________________________________________
1 21 U.S.C. §§ 841(a)(1), 846 (1988).
2 United States v. Rusher, 966 F.2d 868, 873 (4th Cir.), cert. denied,
___ U.S. ___,
61 U.S.L.W. 3285 (U.S. 1992).
3 See United States v. Mehra,
824 F.2d 297, 299 (4th Cir.), cert. denied,
484 U.S. 915 (1987).
4 See Rakas v. Illinois,
439 U.S. 128, 131 n.1 (1978) ("The proponent
of a motion to suppress has the burden of establishing that his own
Fourth Amendment rights were violated by the challenged search or sei-
zure.").
2
failed to establish a reasonable expectation of privacy in the co-
conspirator's mail.5
Next, Jones asserts that the evidence was insufficient for the court
to deny his motion for acquittal. We review a denial of a motion for
acquittal under a sufficiency of evidence standard.6 At trial, the Gov-
ernment showed by witness testimony and forensic evidence that on
several different occasions Jones obtained crack cocaine in New
York, packaged it, wrote instructions to his co-conspirators regarding
its sale price, mailed the crack cocaine to his co-conspirators, and
then travelled to North Carolina to assist in the distribution of the
drugs. We find the evidence, when viewed in the light most favorable
to the government, sufficient for a rational jury to convict Jones; thus,
the district court's denial of Jones's Rule 29 motion was proper.7
Next, Jones contends that the Government's forensic chemist
should not have been allowed to testify regarding the chemical com-
position and weight of the crack cocaine and that a defense expert
witness should have been appointed to testify to the weight of the
drugs seized. Expert testimony is not necessary to establish the iden-
tity of a substance where the witness is familiar with illegal drugs and
where circumstantial evidence supports the testimony.8 Further, denial
of an expert witness must be prejudicial to the defendant's defense,9
and Jones was not prejudiced by the court's denial of an expert wit-
ness because at sentencing the court accepted the lesser quantity pro-
posed by Jones.
Jones also alleges that there was a break in the chain of custody
which made the seized drugs inadmissible. An evidentiary ruling that
is not specifically objected to is reviewed only for plain error.10 Vari-
_________________________________________________________________
5 See Rawlings v. Kentucky, 448 U.S. 98 (1980).
6 FED. R. CRIM. P. 29; United States v. Brooks,
957 F.2d 1138, 1147 (4th
Cir.), cert. denied, ___ U.S. ___,
60 U.S.L.W. 3879 (U.S. 1992).
7
Brooks, 957 F.2d at 1147.
8 See United States v. Uwaeme,
975 F.2d 1016, 1019 (4th Cir. 1992);
United States v. Dolan,
544 F.2d 1219, 1221 (4th Cir. 1976).
9 United States v. Perrera,
842 F.2d 73, 77 (4th Cir.), cert. denied,
488
U.S. 837 (1988).
10 FED. R. CRIM . P. 52(b).
3
ous law enforcement officers laid a foundation of how the drugs were
discovered, identified, transferred, and tested. Further, a co-
conspirator identified the drugs and their unique packaging as consis-
tent with prior drug shipments by Jones. We find the trial testimony
sufficient to support the admission of the evidence as authentic.11
Next, Jones asserts that the court improperly increased his base
offense level four points pursuant to United States Sentencing Com-
mission, Guidelines Manual, § 3B1.1(a) (Nov. 1994), for being an
organizer or leader of a criminal activity involving five or more per-
sons. The finding by the district court that Jones was an organizer in
the conspiracy is a finding of fact reviewable only for clear error.12
Testimony at trial established that the conspiracy consisted of at least
five people and that Jones was a key person in the conspiracy. Fur-
ther, the district court did not err in counting Jones as one of the five
participants in the conspiracy.13 Accordingly, the district court's
application of U.S.S.G. § 3B1.1(a) was not clearly erroneous.14
Lastly, Jones contends that he was denied a fair trial because the
jury panel contained no African-Americans. Challenges to jury com-
position must be raised in a timely fashion to avoid waiver.15 Until
now, Jones never objected to the composition of the jury. Because
Jones failed to raise the issue of the jury's composition during voir
dire or at trial, he waived his right to bring this claim.
Accordingly, we affirm Jones's conviction and 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
_________________________________________________________________
11 FED. R. EVID. 901(a) & (b)(4).
12 See United States v. Hicks, 948 F.2d 877, 881 (4th Cir. 1991).
13 United States v. Fells,
920 F.2d 1179, 1182 (4th Cir. 1990), cert.
denied,
501 U.S. 1219 (1991).
14 See United States v. White,
875 F.2d 427, 431 (4th Cir. 1989).
15 United States v. Webster,
639 F.2d 174, 180 (4th Cir.), cert. denied,
454 U.S. 857 (1981).
4
