UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 98-4365

DESMOND WARD, a/k/a David A.

King,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Graham C. Mullen, Chief District Judge.

(CR-96-29-MU)

Submitted: March 23, 1999

Decided: April 6, 1999

Before ERVIN, LUTTIG, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Paul Morris, LAW OFFICES OF PAUL MORRIS, P.A., Coral

Gables, Florida, for Appellant. Mark T. Calloway, United States

Attorney, Frank D. Whitney, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Desmond Ward appeals his convictions for one count of

conspiracy to possess with intent to distribute cocaine, in violation of

21 U.S.C. §§ 841(a)(1), 846 (1994), and using a communication facility to facilitate the crime, in violation of 21 U.S.C. § 843(b) (1994).

On appeal, Ward argues that insufficient evidence existed to support

his convictions and that the trial court issued an erroneous supplemental jury instruction. Finding no error, we affirm.

The evidence at trial showed that on January 26, 1997, Ward

shipped two separate packages of crack cocaine from the Miami area

via Federal Express to Charlotte, North Carolina. One package was

picked up by a contract courier service (AGS Courier Network) from

Ward at his residence. Ward used the alias of "David King" as the

sender of the package. Ward personally delivered the second package

later in the day to a Federal Express office in North Miami, approximately ten miles away from his home. Ward used the alias "Dale

Riche" as the sender of the second package.

Ward alleges that there was insufficient evidence of an agreement

to conspire to support his conviction because there was no evidence

that he engaged in an agreement to possess with the intent to distribute drugs. This court must uphold a jury verdict if, viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond

a reasonable doubt. See Glasser v. United States , 315 U.S. 60, 80

(1942); United States v. Blue, 957 F.2d 106, 107 (4th Cir. 1992). The

government enjoys the benefit of all reasonable inferences from the

facts proved to facts sought to be established. See United States v.

Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).

To establish a defendant's participation in an illegal drug conspiracy, the government must show an agreement between two or more

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persons to undertake conduct that would violate the laws of the

United States relating to controlled substances and the defendant's

willful joinder in that agreement. See United States v. Burgos, 94 F.3d

849, 857 (4th Cir. 1996). The government may use circumstantial evidence to demonstrate a defendant's participation in a conspiracy and

his knowledge of the conspiracy's objectives. See Glasser, 315 U.S.

at 80; Burgos, 94 F.3d at 857-58.

Ward addressed the "David King" package to Terry Crawford, 113

Walnut Avenue in Charlotte, North Carolina. Ward addressed the

"Dale Riche" package to Elliott Johnson at the same Charlotte

address. At trial, the Government introduced evidence connecting

Ward to drug traffickers in Charlotte. On the day that Ward shipped

the two packages, there were two phone calls between Ward's residence and the cellular phone of Michelle Darby in Charlotte. Darby

testified that the phone was used exclusively by Roscoe McCaskill,

the father of her son. McCaskill asked her to subscribe to the service

and told her that he would reimburse her for it. The DEA caught

Terry Lee Crawford in a controlled delivery of one of the packages.

Crawford entered a guilty plea and cooperated with law enforcement

regarding the conspiracy. At trial, Crawford testified that McCaskill

was a long term acquaintance of his who provided him with rock

cocaine for his personal use. McCaskill agreed to pay Crawford $500

to receive a Federal Express package in the name of"Elliott Johnson."

Crawford testified that while McCaskill never told him that drugs

would be in the package, he knew that the contents were illegal and

that the contents were likely drugs, although he was unaware of the

amount.

Crawford also testified that he knew one of McCaskill's associates,

Christopher Keith Simmons. Crawford knew Simmons only as Keith

from Miami. According to United States Probation Office and hotel

business records, Keith Simmons was staying at the Southpark Suites

Hotel in Charlotte on January 22-24, a few days before the Federal

Express shipments. When an unidentified person arranged for the

same day Federal Express service pickup of the "David King" package, the phone contact in Charlotte that was given was the phone

number for Simmons' hotel room, and not the phone number for 113

Walnut Avenue, the address on the package. We find that this evidence is sufficient to find an agreement to conspire.

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Ward next alleges that the Government did not prove he knew that

either of the two boxes contained cocaine. The Government produced

the shipping documents and used expert handwriting analysis and the

testimony of both persons receiving the Federal Express packages

prior to shipment. The handwriting expert testified that Ward prepared the set of shipping documents for the same day"David King"

package. The courier testified that Ward signed a document stating

that the contents were visually inspected and matched the shipping

documents. The Federal Express employee testified that Ward prepared the shipping label for the "Dale Riche" package in her presence.

Ward's deceit surrounding the shipping of both packages such as

the use of aliases for both packages, using the address of elderly

neighbors as the shipper's address on one of the packages, and shipping two packages to the same address on the same day is strong circumstantial evidence that he had knowledge of the content of the

packages. Also, the phone record linking calls from Ward's residence

to the cellular phone of a drug trafficker on the day the packages were

mailed, and using the phone number of a hotel where another drug

dealer was staying for the phone number at the receiving address is

circumstantial evidence that Ward knew that the packages contained

cocaine. We therefore find that sufficient evidence existed to sustain

the convictions.

Ward also attempts to argue that even if the evidence is sufficient

to sustain the convictions, the weight of the evidence dictates that the

case be remanded for a new trial. See Tibbs v. Florida, 457 U.S. 31

(1982). Ward argues that he preserved the issues he raises as to the

weight of the evidence by unsuccessfully moving for a new trial on

the same grounds. However, he frames these arguments as a challenge

to the sufficiency of the evidence and does not assign error to the

denial of the motion for a new trial.

Ward raises other pure sufficiency arguments particularly relating

to his knowledge that the packages contained cocaine. Ward also

alleges that the Federal Express clerk's identification of Ward was

suspect, the prosecutor improperly vouched for a witness, and his

counsel did not effectively represent him. Ward's trial counsel did not

object to the identification or the alleged vouching for a witness.

Ward's use of these issues framed as weight of the evidence issues

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is an attempt to raise ineffective assistance of counsel issues. We

decline to review the ineffective assistance of counsel issues Ward

raises on direct appeal because it does not appear conclusively from

the record that counsel did not provide effective assistance. See

United States v. Fischer, 477 F.2d 300, 302 (4th Cir. 1973).

The remaining issues raised by Ward regarding the weight of the

evidence involve credibility choices of the jury. See Tibbs, 457 U.S.

at 37-38 (holding that reversal based upon weight of the evidence is

a credibility determination). We do not weigh the evidence or review

the credibility of witnesses when reviewing the sufficiency of the evidence. See United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).

We therefore decline to remand for a new trial.

Finally, Ward assigns error to the district court's response to a jury

question. In examining a district court's response to a request for clarification from the jury, the issue is whether the court responded to the

jury's inquiry "fairly and accurately without creating prejudice."

United States v. Smith, 62 F.3d 641, 646 (4th Cir. 1995) (citing

United States v. United Med. & Surgical Supply Corp. , 989 F.2d

1390, 1407 (4th Cir. 1993)). The decision to give a supplemental

instruction and the specific words chosen are left to the discretion of

the district court. See id. (citing United States v. Horton, 921 F.2d

540, 546 (4th Cir. 1990)). Applying these standards, we consider the

supplemental instruction given by the district court.

During jury deliberations, the jury sent questions regarding the

Government's exhibit 3, the "Network Courier Services Shipper's

Security Notification." The jury asked whether the Defendant's signature constituted an admission of guilty knowledge of the contents of

the same day delivery box. The defense suggested two alternative

responses: that the jurors rely upon their recollection, or a reading of

the entire testimony of the courier handling the package pick up. The

Government agreed and discouraged the reading of only a selection

of the courier's testimony. The district court instructed the jury that

it is a fact determination for the jury, and that in making the determination, they must examine all of the evidence. The district court went

on to state, "I'm going to relate what my recollection of the evidence

was. You are to take your recollection, not mine, if yours (sic) differs

from mine, you take yours (sic) . . . ." (J.A. 452). The district court

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related that its recollection of the courier's testimony was that the

courier arrived at Ward's residence, handed him the paperwork to fill

out, waited for Ward to complete it, did not require the production of

a driver's license, and left with the paperwork and package.

We find that the district court did not abuse its discretion in issuing

the supplemental instruction. The district court responded to the jury's

inquiry "fairly and accurately without creating prejudice." See Smith,

62 F.3d at 646. Ward argues that he was prejudiced by the instruction

because the court "unduly emphasized that portion of the courier's

testimony most supportive of the government's argument while omitting the courier's testimony that supported the defense." We disagree.

The district court gave an even-handed and accurate recollection of

the courier's testimony. In addition, the court instructed the jurors to

rely upon their own recollection, even if it differed from that of the

court.

We therefore affirm the criminal judgment. We deny Ward's

renewed motion for remand to the trial court for a hearing on his ineffective assistance of counsel issues. 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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