UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                 No. 97-4281

CHUNGA HAKI MATATA, a/k/a K-9,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Shelby.
Lacy H. Thornburg, District Judge.
(CR-94-44)

Submitted: April 30, 1998

Decided: May 27, 1998

Before MURNAGHAN, NIEMEYER, and MOTZ,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Roy H. Patton, Jr., KILLIAN, KERSTEN & PATTON, P.A.,
Waynesville, 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Unpublished opinions are not binding precedent in this circuit.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:

Chunga Haki Matata appeals his conviction and sentence for five
counts of possession with intent to distribute cocaine base in violation
of 21 U.S.C. § 841(a)(1) (1994), and one count of being a felon in
possession of a firearm in violation of 18 U.S.C.§ 922(g)(1) (1994).
The district court sentenced Matata to a term of imprisonment of 360
months and five years of supervised release. Finding no error, we
affirm.

Matata was charged as part of complicated conspiracy to distribute
cocaine and cocaine base in the Rutherford County, North Carolina,
area in the early 1990's. Several government agencies investigated the
conspiracy. In 1993, Matata moved into the Rutherford County area
and began selling rocks of cocaine. Several Government witnesses
testified that Matata sold cocaine base to them, saw Matata in posses-
sion of cocaine base, or saw him cooking cocaine base. As part of the
investigation, law enforcement agents recruited Christopher Scott
Gossett, who had been arrested for possession of drugs, to participate
in the investigation. Gossett made numerous controlled buys of
cocaine base for the agents. On one occasion, Matata sold Gossett a
.25 caliber handgun. Matata does not dispute that, at the time of the
sale, he was a convicted felon.

At trial, Gossett testified that on two occasions his cousin, Jan Pat-
rick Lynch, went with him to buy the cocaine base from Matata.
Lynch was unavailable to testify at trial. However, Gossett testified
that prior to the buy, agents searched Lynch in his presence, that
Lynch did not leave his presence throughout the transaction, and that
after the purchase of drugs, he turned the drugs over to Agent Petty.
Agent Petty testified that both Gossett and Lynch turned over the
drugs to him after the controlled buy.

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At the beginning of the trial, Matata's counsel objected to the com-
position of the jury. Matata is African-American. The panel consisted
of one African-American member. Defense counsel objected and
stated that it was a per se violation to have only one African-
American panel member; in the alternative, he asked that the court
challenge the array of jurors, or that he be allowed to investigate the
method of jury selection. The court denied the motion.

During trial, defense counsel informed the court that the Defendant
insisted that his counsel examine the testifying officers about a Sep-
tember 1993 arrest in South Carolina and a subsequent arrest and
search in Rutherford County, North Carolina. The Government
objected. The court required counsel to make a proffer of what evi-
dence he expected to elicit. Counsel stated that whether the arrest and
search were legal would go to the officers' credibility. The court
denied the line of questioning.

The jury returned a verdict convicting Matata of all but count one
of the indictment, the conspiracy charge. The jury could not reach a
verdict on count one and the court declared a mistrial on that count.
The Government dismissed count one. Matata filed a motion after dis-
charge of the jury for acquittal on the remaining counts. The court
denied the motion.

Prior to sentencing, the probation office prepared a Presentence
Investigation Report (PSR), and Matata noted his objection to it. The
court held a sentencing hearing and considered Matata's objections.
The court attributed 284.79 grams of cocaine base to Matata, based
upon the testimony of several witnesses. The court then increased the
base offense level by two points for possession of a firearm. The court
also found that Matata was a career offender and established a crimi-
nal history category of VI. The court sentenced Matata to 360
months' imprisonment for three of the possession with intent to dis-
tribute counts and 240 months for the remaining possession with
intent to distribute charges, all terms to run concurrently.

First, Matata argues that the district court erred by refusing to allow
a challenge to the composition of the jury panel. By statute, a defen-
dant may challenge the method by which jurors are selected, and, if
successful in showing that cognizable groups have been excluded, the

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defendant is entitled to a new trial. See 28 U.S.C. § 1867 (1994).
Under 28 U.S.C. § 1867(d), a defendant challenging the method by
which juries are selected is required to file with his motion a "sworn
statement of facts which, if true, would constitute a substantial failure
to comply with the provisions of this title." Failure to file such a
sworn statement requires that the motion be denied. See United States
v. Aguirre, 

, 1287 (10th Cir. 1997), cert. denied, ___
U.S. ___, 

 (U.S. Oct 20, 1997) (No. 96-1982).
Matata has not filed the statutorily required sworn allegation that
some identified discriminatory mechanism was employed in the dis-
trict plan.

Matata argues that he could not comply with § 1867(d) because he
did not learn of the composition of the jury until the day voir dire
began. This type of hindrance is accounted for in the statute, however,
because the motion may be made within seven days after the defen-
dant discovered the grounds for the substantial failure to comply with
the jury selection provisions. See 18 U.S.C.§ 1867(a). Even in his
brief on appeal, Matata does not put forth any evidence supporting his
claim of a violation of the jury selection procedures. In addition, this
court has approved the jury selection plan of the Western District of
North Carolina. See In Matter of the Review of the Amendment to the
Jury Selection Plan Submitted by the United States District Court for
the Western District of North Carolina, Order No. 85 (Order of Chief
Judge Ervin of the Fourth Circuit Court of Appeals, Mar. 23, 1992).
We therefore find this claim to be without merit.

Second, Matata argues that the district court erred in denying his
motion for judgment of acquittal. In his brief, Matata limits his argu-
ment to challenging counts 24 and 25 of the indictment, the charges
involving the cocaine base buys of Gossett and Lynch together.
Matata argues that it would be unreasonable to assume that Gossett
would be able to know what Lynch did with any drugs he took into
his possession, and therefore the quantity of drugs purchased by
Lynch and given to Agent Petty should not have been admitted.
Because Lynch did not testify, Gossett's and Petty's testimony was
the only evidence presented on counts 24 and 25.

The appellate court reviews the sufficiency of the evidence in the
light most favorable to the government. See Jackson v. Virginia, 443

                     

, 319 (1979). At trial, Gossett testified that on two occasions
Lynch went with him to purchase cocaine base from Matata, that both
he and Lynch were searched prior to the buy, that Lynch was in his
presence at all times, that he observed transactions with Matata and
Lynch, and that Lynch turned the drugs he purchased over to Agent
Petty. Petty testified that on the two occasions Lynch accompanied
Gossett, Lynch and Gossett each submitted packets of cocaine base
to him following their purchases; Petty also testified to the amounts
purchased by Lynch. We find that the convictions on these counts are
supported by sufficient evidence.

Next, Matata argues that the district court erred by refusing to
allow his counsel to cross-examine Petty and other investigating
agents about a September 1993 arrest in South Carolina. The arrest
and subsequent search of Matata's car were not the subject of the
criminal charges at issue in this case. During the trial, near the close
of the Government's case, Matata's counsel informed the court that
Matata wished to cross-examine the agents regarding the September
1993 incident, against the advice of counsel. During cross-
examination of Petty, the Government objected to the line of ques-
tioning. Defense counsel stated that inquiry into the arrest and search
might show that Petty violated Matata's constitutional rights, and the
illegal conduct could be probative of his testimony. Both parties
agreed that the arrest did not have any other relevance to the trial and
that no evidence from that arrest and search was entered in the present
criminal case. The court did not allow further questioning on the mat-
ter because the information was not relevant to the issues at trial.

A trial court's evidentiary rulings are normally reviewed for an
abuse of discretion. See United States v. Fernandez, 

,
154-55 (4th Cir. 1990). When a witness's credibility is in issue, spe-
cific instances of the witness's conduct may be inquired into on cross
examination only if probative of truthfulness or untruthfulness. See
Fed. R. Evid. 608(b). The trial court is vested with broad discretion
to control the mode of interrogation and the presentation of evidence.
See United States v. Gravely, 

, 1163 (4th Cir. 1988).
Except for evidence of conviction of a crime as provided in Rule 609,
extrinsic evidence of specific instances of conduct may not be used
to impeach a witness's credibility. See Fed. R. Evid. 608(b); United
States v. Bynum, 

, 772 (4th Cir. 1993). The reason for the

                    5
rule is to avoid holding a series of mini-trials on witness credibility
within the trial itself. See Bynum, 3 F.3d at 772. It was not an abuse
of discretion for the district court to deny Matata's attempt to impeach
the investigating agents' credibility based upon an unrelated series of
events. To delve into that subject would create exactly the type of
mini-trial to be avoided under Bynum. Such extrinsic conduct evi-
dence is prohibited by Fed. R. Evid. 608(b).

Finally, Matata raises many issues with respect to sentencing. His
main assignment of error is that the PSR included incorrect drug
quantities and discussed counts in the indictment which had been dis-
missed, and therefore the PSR was prejudicial and resulted in an
unfair sentence in contradiction to the stated purposes of the Sentenc-
ing Commission. The district court's factual findings are reviewed
under the clearly erroneous standard, while its interpretation of guide-
line terms is reviewed de novo. See United States v. Daughtrey, 

, 217 (4th Cir. 1989).

District courts may take "relevant conduct" into account in deter-
mining a defendant's sentence whether or not the defendant has been
convicted of the charges constituting the relevant conduct. See U.S.
Sentencing Guidelines Manual § 1B1.3 (1997); United States v.
Jones, 

, 1316 (4th Cir. 1994). The court must establish
the amount of drugs attributable to a defendant for sentencing pur-
poses by a preponderance of the evidence. See United States v. Irvin,

, 75 (4th Cir. 1993). Whether the government has met its
burden of proof is a question of fact reviewed for clear error. See
Jones, 31 F.3d at 1316 (citing Daughtrey, 874 F.2d at 217). The
amount of cocaine base attributed to Matata was established by a pre-
ponderance of the evidence. Several witnesses testified to their partic-
ipation in sales with Matata, their observation of cocaine base in
Matata's possession, and their observation of Matata cooking the
cocaine base.

Matata also attacks his sentence because only two of the other con-
spirators named in the indictment received higher sentences. A dispar-
ity in sentences between co-conspirators is not grounds to inquire into
the propriety of the sentence. See United States v. Foutz, 

, 622 (4th Cir. 1989).

                    6
Matata argues that his criminal record was improperly computed
and used against him to enhance his sentence under 18 U.S.C.
§ 924(e)(1) (1994). Matata does not specify how he believes his crim-
inal record was incorrectly computed. Further, an enhancement under
§ 924(e)(1) is appropriate in his case. Under 18 U.S.C. § 922(g)(1),
it is unlawful for a person "who has been convicted [of a felony] in
any court" to possess a firearm or ammunition. Violators of
§ 922(g)(1) are subject to possible sentence enhancement based on
their criminal histories. Section 924(e)(1) provides: "In the case of a
person who violates section 922(g) of this title and has three previous
convictions by any court referred to in section 922(g)(1) of this title
for a violent felony or a serious drug offense, or both, such person
shall be . . . imprisoned not less than fifteen years . . . ." Matata was
previously convicted of at least three violent felonies and/or serious
drug offenses. Accordingly, the district court did not err in applying
§ 924(e)(1).

We therefore affirm the criminal judgment. We deny Matata's
motion for an injunction. We dispense 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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