Filed: Nov. 06, 2008
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4326 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CARL KOTAY GRAHAM, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., Chief District Judge. (1:06-cr-00267-JAB) Submitted: October 10, 2008 Decided: November 6, 2008 Before WILLIAMS, Chief Judge, and TRAXLER and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. A
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4326 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CARL KOTAY GRAHAM, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., Chief District Judge. (1:06-cr-00267-JAB) Submitted: October 10, 2008 Decided: November 6, 2008 Before WILLIAMS, Chief Judge, and TRAXLER and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. A...
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4326
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARL KOTAY GRAHAM,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:06-cr-00267-JAB)
Submitted: October 10, 2008 Decided: November 6, 2008
Before WILLIAMS, Chief Judge, and TRAXLER and KING, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
A. Wayne Harrison, Sr., Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Lisa B.
Boggs, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carl Kotay Graham appeals his conviction for possession
with intent to deliver 12.2 grams of crack cocaine, see 21
U.S.C.A. § 841 (West 1999 & Supp. 2008), challenging the
sufficiency of the evidence presented against him. Finding no
error, we affirm.
I.
Because Graham challenges the sufficiency of the evidence
to support his conviction, we summarize the evidence presented
at trial, as well as the inferences flowing therefrom, in the
light most favorable to the government. See Glasser v. United
States, 315 U.S. 60, 80 (1942). On June 22, 2006, Greensboro
(North Carolina) Police Department officers obtained information
from a confidential informant (“Truck”) regarding a drug
transaction that was to take place in downtown Greensboro.
Officer Alston met with Truck, discussed what he needed to do to
help the police, and searched him and his car. Several officers
then followed Truck to a Hardee’s restaurant where the
transaction was to occur and set up surveillance across the
street.
Truck, driving a Cadillac, parked in the Hardee’s parking
lot near a phone booth and remained there until a silver Hyundai
arrived. Truck then exited his vehicle and opened the trunk,
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thereby signaling the officers to move in. As they did, one
police vehicle pulled in behind the Hyundai, blocking it in,
while another, a Ford Expedition, attempted to block the
Hyundai’s passenger-side door. The passenger in the Hyundai,
later identified as Graham, opened the door before the Explorer
could block it, exited the vehicle, and commenced running
through the parking lot with his hands on his pants as if he
were trying to prevent something from falling out. Upon seeing
the officers, he pulled a medium-sized plastic bag from his
pants, ripped it open, and started dumping its white, powdery
contents onto a gravel lot. Officers later collected the
contents, which the State Bureau of Investigation (“SBI”)
laboratory determined to be 91.5 grams of cocaine hydrochloride.
While officers were collecting the cocaine, Officer Hill
noticed a white substance in a plastic bag on the ground between
the Hyundai’s passenger door and the bumper of the Ford
Expedition that had been used to try to block the door. The
substance was collected, as were two cell phones found on the
ground near the Hyundai’s passenger door. The cell phones were
later linked to Graham when he gave the officers his cell phone
numbers. One of the numbers corresponded to one of the phones,
and the other was one digit off from the number of the other
phone. The SBI laboratory determined that the white substance
found in the plastic bag was 12.2 grams of cocaine base (crack
3
cocaine). Sergeant Tom Kroh opined that the value of the crack
cocaine was $60-$100 per gram.
Graham was arrested and advised of his rights, after which
he admitted that he had bought approximately 15 ounces of powder
cocaine about two weeks before and had been gradually selling
it. Graham further admitted that he had come to Hardee’s to
sell four ounces of powder cocaine to Truck for $3,000 and that
he had sold five more ounces of powder cocaine earlier in the
day. Graham was not asked about the crack cocaine found near
where he had exited the Hyundai.
The driver of the Hyundai was Brandi Hancock, a girlfriend
of Graham’s. Graham called Hancock several times from the
Forsyth County Jail, where he was incarcerated. These calls
were recorded, and during some of them, Graham instructed
Hancock regarding the substance of her testimony. He told her,
“Listen and pay attention . . . . This is how it is going to
work.” * He then told her that if it appeared that charges
against her would not be dismissed, Graham would represent that
Hancock did not know anything about his illegal activities since
she could not be criminally liable for a conspiracy that she did
not know about. He also told her that they would “have to help
*
The tapes of the conversations were not transcribed, but
the tapes were in evidence in the district court.
4
each other,” and that if she were subpoenaed, she should say,
“Nah, that ain’t what I said and I didn’t see it.” Graham
added, “You know what I am saying.”
During a separate phone conversation, Graham inquired about
discussions Hancock had with the police. Graham asked Hancock
what she had said about how the two of them had met, how long
they had known each other, and whether she had been asked if she
had ever seen him do anything illegal. Graham told her,
You did not know what was going on, you did not ask me
what was going on, you know what I am saying. And the
next thing you know they just came, you know what I am
saying. You did not see nothing, you did not hear
nothing. You know what I am saying. . . . And I
promise you will be alright.
Hancock then asked Graham if he had had crack cocaine, to which
he responded, “‘B,’ listen, don’t worry about that.”
During another call, Graham asked Hancock which way Truck
ran when the police moved in, and Hancock told him he went left.
Graham informed her he was going to trial and stated, “I pled
guilty to that powder, man, but they [are] trying to say that I
had some crack on me, man. My only defense is you . . . . I
need them to know, listen now, I need them to know that [Truck]
ran by the passenger door.” Graham also told her, “I need you
to let them know that you were not supervised for at least 2-3
minutes, do you understand.” He later stated, “You my only
defense, don’t you understand that? . . . If I lose, man I’m
5
gone, man, it’s over, bye, see you next lifetime . . . . It’s
the crack that’s giving me, making me face this time.”
A federal grand jury returned a two-count bill of
indictment against Graham. Count One charged possession with
intent to deliver 12.2 grams of crack cocaine. Count Two
charged possession with intent to deliver 91.5 grams of cocaine
hydrochloride.
Graham pleaded guilty to Count Two and proceeded to a bench
trial on Count One. At the close of the evidence, Graham moved
unsuccessfully for a judgment of acquittal. See Fed. R. Crim.
P. 29. The district court subsequently found Graham guilty on
Count One:
Based upon all the evidence that’s been presented,
although it is circumstantial, the Court finds beyond
a reasonable doubt that the 12.2 grams of cocaine
base, crack, found in the area where [Graham] exited
the vehicle and where his cell phones were located,
was in [Graham’s] possession and was knowingly and
intentionally possessed by him with intent to
distribute cocaine base, crack. The Court further
finds the evidence establishes beyond a reasonable
doubt, although circumstantially, that [Graham] knew
that what he possessed was a controlled substance.
J.A. 192. The court imposed a sentence of 360 months’
imprisonment.
II.
Graham challenges the sufficiency of the evidence to
support the district court’s finding that he possessed with
6
intent to deliver the 12.2 grams of crack cocaine. We must
sustain the verdict “if there is substantial evidence, taking
the view most favorable to the Government, to support it.”
Glasser, 315 U.S. at 80. We are prohibited from “overturn[ing]
a substantially supported verdict merely because [we] . . .
determine[] that another, reasonable verdict would be
preferable. Rather, we shall reverse a verdict if the record
demonstrates a lack of evidence from which a [factfinder] could
find guilt beyond a reasonable doubt.” United States v. Burgos,
94 F.3d 849, 862 (4th Cir. 1996); see United States v. Murphy,
35 F.3d 143, 148 (4th Cir. 1994) (explaining that it is within
the province of the factfinder, not the appellate court, to
“resolve[] any conflicts in the evidence presented, and if the
evidence supports different, reasonable interpretations, the
[factfinder] decides which interpretation to believe” (citation
omitted)). Accordingly, in the context of a challenge to the
sufficiency of the evidence, our task as an appellate court is
simply to determine whether, in light of the evidence presented
at trial, the district court “could rationally have reached a
verdict of guilt beyond a reasonable doubt.” United States v.
Powell,
469 U.S. 57, 67 (1984). Because we consider the
evidence in the light most favorable to the government, granting
“the government the benefit of all reasonable inferences from
the facts proven to those sought to be established,” United
7
States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982), Graham
must carry an imposing burden to successfully challenge the
sufficiency of the evidence, see United States v. Beidler,
110
F.3d 1064, 1067 (4th Cir. 1997).
He has not carried that burden in this case. At the time
of the offense, three people were present in the immediate area
of the drug transaction, Truck, Hancock, and Graham. Officers
had searched Truck prior to the transaction to ensure that he
did not have any drugs. As for Hancock, she testified that she
did not have any drugs when she drove Graham to the Hardee’s.
That left only Graham. While officers did not actually see
Graham drop the crack cocaine, his cell phones were found in
close proximity to the drugs, and he was seen running from the
car, holding his pants as if he were trying to keep something
from falling out. And, it was highly unlikely that someone else
would have left drugs valued at hundreds of dollars on the
ground, especially in the very area where Graham had been.
The evidence of Graham’s phone conversations with Hancock
further supported the conclusion that the crack cocaine belonged
to Graham. Attempting to influence a witness’s testimony is
evidence of a defendant’s consciousness of his guilt. See
United States v. Van Metre, 150 F.3d 339, 352 (4th Cir. 1998).
Here, the district court could reasonably have found that Graham
was attempting to shape Hancock’s testimony regarding his
8
possession of the crack cocaine. And, we conclude that that
evidence, taken together with the other evidence discussed
herein, justified the district court’s determination that Graham
had possessed the crack cocaine.
III.
In sum, we conclude that the evidence was sufficient to
support the district court’s finding of guilt on Count One. We
therefore affirm Graham’s conviction. 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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