UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4487

MARK ANTHONY ROBERTS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CR-96-68)

Submitted: November 17, 1998

Decided: December 7, 1998

Before MURNAGHAN and HAMILTON, Circuit Judges, and
HALL, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Anthony J. Vegh, Cleveland, Ohio, for Appellant. J. Rene Josey,
United States Attorney, Matthew R. Hubbell, Assistant United States
Attorney, Charleston, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Mark Anthony Roberts appeals his jury conviction and sentence on
one count each of conspiracy to distribute cocaine and cocaine base
(count one) and conspiracy to launder money (count nine), in viola-
tion of 21 U.S.C. § 841(a) (1994), 21 U.S.C.A.§ 846 (West Supp.
1998), 18 U.S.C.A. § 1956(h) (West Supp. 1998), and four counts
each of money laundering and aiding and abetting (counts thirteen,
fourteen, fifteen and sixteen), in violation of 18 U.S.C.A.
§§ 1956(a)(1)(A)(i), (a)(1)(B)(i) (West Supp. 1998), 18 U.S.C. § 2
(1994). The district court sentenced Roberts to a term of life impris-
onment on count one, and to a term of imprisonment of 240 months
on each of the remaining counts, with those terms to run concurrently.
In addition, the district court sentenced Roberts to a supervised
release term of five years on count one and three years on each
remaining count, to run concurrently, and further ordered payment of
a $300 special assessment. Roberts' sentence was based on a total
offense level of forty-three and a criminal history category of I.

Roberts noted a timely appeal, claiming that: (1) the prosecutor
committed misconduct warranting reversal by asking Roberts, on
cross-examination, how much he paid for his retained attorney; (2)
the district court clearly erred in ordering an eight-point enhancement
of Roberts' criminal history category pursuant to the U. S. Sentencing
Guidelines Manual § 3B1.1 (1996); (3) the district court clearly erred
in determining the amount of crack cocaine attributable to Roberts;
(4) the district court clearly erred in its calculation of the "value of
funds" laundered pursuant to USSG § 2S1.1; (5) the district court
erred by failing to make factual findings necessary to enhance Rob-
erts' sentence for obstruction of justice for committing perjury while
testifying in his own defense; and (6) the district court committed
plain error in the Allen1 charge it gave the dead-locked jury. For the
reasons stated below, we affirm Roberts' conviction and sentence.

Roberts' first claim is that the district court erred in denying his
_________________________________________________________________

1 See Allen v. United States, 

(1896).

                    2
motion for a mistrial on the ground that the prosecutor committed
misconduct warranting a new trial by asking him how much he paid
for his retained attorney. This claim must be construed in light of the
fact that Roberts' primary defense was that he was too poor to have
been involved in the drug distribution and money laundering organi-
zation as alleged by the government. To the extent the prosecutor's
inquiry surpassed that necessary as a relevant inquiry regarding Rob-
erts' unexplained wealth, we find that Roberts has not established that
the question prejudicially affected his substantial rights so as to
deprive him of a fair trial. See United States v. Mitchell, 

,
240 (4th Cir. 1993). There was a plethora of evidence proving his
involvement in the crimes charged,2 and the district court disallowed
the question and gave a curative instruction to the jury. Therefore, we
can "say with fair assurance, after pondering all that happened with-
out stripping the [allegedly] erroneous action from the whole, that the
judgment was not substantially swayed by the [claimed] error."
United States v. Ince, 

, 583 (4th Cir. 1994) (internal quo-
tation marks omitted).

Roberts also claims that the sentencing court's eight-point enhance-
ment of his base offense level, pursuant to USSG§ 3B1.1(a), for his
leadership role in the offenses charged in counts one and nine (four
points each), was clearly erroneous.3 We have upheld § 3B1.1
enhancements where the defendant exercised some element of control
over the commission of the offense, see, e.g. , United States v.
Kincaid, 

, 329 (4th Cir. 1992), and specifically where the
defendant was a major supplier of drugs for distribution and redistri-
_________________________________________________________________
2 The government presented the testimony of several of the principals
in the drug conspiracy, who testified at length from their personal knowl-
edge of Roberts' involvement as a leader and organizer of the drug con-
spiracy, and introduced several highly incriminating tape recordings of
Roberts discussing drugs and/or drug money with principals in the con-
spiracy.
3 We note that while mentioning the district court's four-point enhance-
ment on the count nine conviction in his claim on appeal, Roberts offered
no specific argument in support of any contention of clear error as to the
count nine enhancement in either his initial or reply briefs on appeal. To
the extent Roberts raised a claim of error as to the four-point enhance-
ment as to count nine, our review of the record reveals no clear error.

                    3
bution by and to other members of the conspiracy. See, e.g., United
States v. Banks, 

, 1057 (4th Cir. 1993).

The trial evidence in this case as to the drug distribution count
(count one) demonstrated, and the district court found, ample evi-
dence showing that Roberts "set up, trained and directed others" in the
distribution of cocaine. Bobby Gadsden, a co-conspirator, specifically
named Roberts as the "boss" of the organization. Gadsden attested
that he worked directly for Roberts, and took instruction and direction
from Roberts regarding the receipt of the powder cocaine, the cooking
of the powder cocaine into crack, how to secrete the drug money in
the wheel well of a Corsica automobile, and the distribution and redis-
tribution of the cocaine to and from other members of the conspiracy,
including Brandon Whittle, Kevin Coad, Angela McFadden, Alfredo
Gadsden (Bobby's brother), and others. There was testimony from
two co-conspirators that Roberts himself cooked the first kilogram
shipment of powder cocaine into crack before it was delivered to
Gadsden for distribution, and further testimony that Roberts recruited
Whittle as a courier and initially supplied him with over a kilogram
of crack in New York, which Whittle then delivered to Gadsden for
sale in South Carolina. Whittle testified that he was the middle-man
between Roberts, who supplied all the cocaine and Gadsden, who dis-
tributed the cocaine. According to Gadsden, it was routine that Rob-
erts and/or Garfield Williams delivered crack to him every week or
two in amounts ranging from twelve to fifteen ounces, and that Gads-
den sold two to three kilograms of crack per month for five or six
months. Several witnesses testified that Roberts was the supplier of
the cocaine shipped from New York and the recipient of the drug pro-
ceeds. Williams testified that Roberts controlled the money involved
in the conspiracy, and that while Williams recruited Coad into the
conspiracy, he did so only after obtaining Roberts' authorization. In
addition, McFadden testified that Roberts approached her about going
to Jamaica to pick up drugs for him.

We find this evidence ample to support the conclusion that Roberts
exercised a great deal of control over the conspiracy to distribute
cocaine and cocaine base, see 

, and that he
was a major supplier of cocaine for distribution and redistribution to
other members of the conspiracy. See 

.
Accordingly, we find no clear error in the district court's factual

                    4
determination that Roberts was a leader in the cocaine conspiracy
warranting a four-point enhancement of Roberts' base offense level
on count one.

Roberts next claims that the district court erred in determining the
amount of drugs involved in the offense. This court reviews questions
involving legal interpretations of the guidelines de novo, see United
States v. Wessells, 

, 168 (4th Cir. 1991), and factual
determinations underlying application of the guidelines for clear
error. See United States v. Daughtrey, 

, 217 (4th Cir.
1989). In determining the quantity of drugs attributable to a defendant
convicted on a drug conspiracy charge, a defendant is responsible for
all reasonably foreseeable drug distribution taken by others in further-
ance of the conspiracy, and the government need only prove the quan-
tities by a preponderance of the evidence. See United States v. Ellis,

, 1067 (4th Cir. 1992) (citing USSG§ 1B1.3).

The sentencing court determined that Roberts was responsible for
twelve kilograms of crack cocaine.4 This finding was based upon trial
evidence of one kilogram of cocaine which Roberts delivered to
Bobby Gadsden, seven kilograms based on seven trips made by Whit-
tle transporting one kilogram on each trip from New York to South
Carolina, two kilograms based on trips made by Coad from New York
to South Carolina, and two kilograms based on a trip made by
McFadden and Alfredo Gadsden,5 together with Bobby Gadsden's
testimony that the powder cocaine was cooked into crack when sold
by the organization. In addition, Gadsden testified that, in total, he
sold two to three kilograms of crack cocaine per month for five to six
months, which amounts to ten to eighteen kilograms.

On appeal, Roberts specifically objects to being sentenced on the
basis of crack, rather than powder, cocaine, claiming that there were
_________________________________________________________________
4 The government correctly notes that pursuant to USSG § 2D1.1(c)(1),
the district court only needed to find Roberts accountable for one and a
half kilograms of crack cocaine to support a base offense level of thirty-
eight, which is the base offense level attributed to Roberts on the distri-
bution charge.
5 One kilogram of this cocaine was seized by authorities prior to deliv-
ery to Gadsden.

                    5
no specific agreements involving Roberts that the powder would be
cooked into crack for resale, and that it was not reasonably foresee-
able to Roberts that Gadsden would cook all the powder into crack.
However, there was substantial evidence at trial to support the sen-
tencing court's determination that Roberts directly knew much of the
powder was being cooked prior to resale, and that it was reasonably
foreseeable that the rest of the powder was converted into crack prior
to further distribution by the conspiracy. For example, Gadsden testi-
fied that Roberts specifically instructed him on how to cook powder
cocaine into crack. Gadsden also attested that he told Roberts, when
they first formed the conspiracy, that he could move up to a kilogram
of crack and "build it up" as it went along. In addition, there was testi-
mony from two co-conspirators that Roberts himself cooked the first
kilogram shipment of powder cocaine into crack before it was deliv-
ered to Gadsden for distribution, and that Roberts initially supplied
Whittle with over a kilogram of crack in New York, which Whittle
then delivered to Gadsden for sale in South Carolina. According to
Gadsden, it was routine that Roberts and/or Williams delivered crack
to him every week or two, and that Gadsden sold two to three kilo-
grams of crack per month for five to six months on behalf of Roberts.
Finally, both Gadsden and Williams stipulated in their plea agree-
ments that each of them were accountable for ten kilograms of crack
cocaine due to their involvement in the conspiracy.

Based on the evidence before the sentencing court, we find that the
court's finding that twelve kilograms of crack cocaine were attribut-
able to Roberts was not clearly erroneous. See 

. Hence, the district court properly considered that amount in
sentencing Roberts.

Roberts' fourth claim is that the district court erred in finding that
Roberts laundered at least $200,000, and thus enhanced his base
offense level by two points, pursuant to USSG § 2S1.1. We will
affirm the district court's calculations under USSG§ 2S1.1 unless
clearly erroneous. See United States v. Barton , 

, 65 (4th
Cir. 1994). To determine the monetary cost of the crack, the district
court relied upon statements given by Gadsden to authorities that he
sent an average of $20,000 per kilogram to Roberts after everyone
else had received their cut. Roberts does not challenge the monetary
amount per kilogram; rather, he disputes the number of kilograms

                     6
involved, essentially repeating his argument made relative to the pre-
vious claim, that he should have been held accountable for less than
ten kilograms of cocaine. He asserts that he should be assessed only
for funds laundered on the basis of between $100,000 to $200,000,
with a related one-point enhancement.

As we held above, the district court's determination that Roberts
was accountable for twelve kilograms of cocaine base was not clearly
erroneous. Therefore, we find that the district court's usage of that
same twelve kilograms of cocaine base for purposes of calculating the
amount of money laundered relative to the sale of that cocaine like-
wise was proper.

Roberts next contends that the district court erred by failing to
make factual findings necessary to enhance his sentence, pursuant to
USSG § 3C1.1, for committing perjury while testifying in his own
defense, and that the obstruction enhancement violated his constitu-
tional right to testify in his own defense. The district court's determi-
nation that Roberts committed perjury is a factual determination
reviewable for clear error. See United States v. Murray, 

,
1165 (4th Cir. 1995).

Our review of the record reveals that the prosecutor identified nine
specific examples of perjurious statements made by Roberts in the
course of his trial testimony, including his denial that he was the sup-
plier for the organization and his denial that he was at all involved
with drugs, contrary to the weight of the other evidence, including
testimony from a number of other co-conspirators and tape recorded
conversations. After the government cited the various examples of
perjured testimony, the district court adopted the government's recita-
tion, stating that the instances of perjury enumerated by the govern-
ment were accurate, that the court had reviewed the taped
conversations and transcripts, that the court was left with no question
that Roberts had perjured himself in that his testimony was "clearly
contradicted" by the evidence, and that Roberts knew that it was. In
addition, the district court noted that the jury likely was influenced by
Roberts' false testimony. We find that the district court's statements
regarding Roberts' perjurious testimony were sufficient to support
findings of materiality, falsity of testimony, and willfulness to deceive
as required under United States v. Dunnigan, 

, 94-95

                     7
(1993), and United States v. Smith, 

, 646-47 (4th Cir.
1995). Moreover, because a defendant's right to testify does not
include the right to commit perjury, see 

, the
district court's enhancement of Roberts' sentence did not violate his
constitutional right to testify at trial.

Roberts' final claim concerns the Allen charge which the district
court gave to the jury following a deadlock. Without objecting to any
particular aspect of the Allen charge given, Roberts claims generally
that the charge coerced the minority of the jurors. As Roberts failed
to raise this claim in the district court, we review it on appeal for plain
error. See United States v. Burgos, 

, 938 n.4 (4th Cir.
1995); United States v. Russell, 

, 1107 (4th Cir. 1992).

A review of the trial transcript reveals that the charge was bal-
anced, in that it encouraged both the majority and the minority to lis-
ten to each other's views. It emphasized that each juror should decide
the case for themselves only after an impartial consideration of the
evidence with fellow jurors. The district court specifically warned
jurors that they should not surrender their honest conviction as to the
weight or effect of the evidence solely because of the opinion of other
jurors or just to reach a verdict. The district judge then reminded the
jurors that it was their duty to consult with other jurors and to deliber-
ate with a view to reaching an agreement if it could be done without
violence to their individual judgment. Moreover, Roberts' counsel
expressed satisfaction with the Allen charge both before and after it
was given. We specifically find that the Allen charge was fair, neutral,
and balanced, and that it was in accordance with the standards estab-
lished by this court. See 

.

Accordingly, we affirm Roberts' 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

                     8