UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4330

TYRONE OTTO BROADNAX,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4349

JACOB WAYNE LONG,

Defendant-Appellant. 

Appeals from the United States District Court

for the Middle District of North Carolina, at Durham.

William L. Osteen, District Judge.

(CR-99-220)

Submitted: October 31, 2001

Decided: November 30, 2001

Before WIDENER, LUTTIG, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

M. Gordon Widenhouse, Jr., RUDOLF, MAHER, WIDENHOUSE &

FIALKO, Chapel Hill, North Carolina, for Appellants. Walter C. Hol-
ton, Jr., United States Attorney, Steven H. Levin, Assistant United

States Attorney, Greensboro, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Tyrone Otto Broadnax and Jacob Wayne Long were indicted for

conspiracy to distribute in excess of fifty grams of cocaine base

(crack) and in excess of 500 grams of cocaine powder, in violation of

21 U.S.C. § 846 (1994). The district court granted Long’s motion to

dismiss the indictment insofar as it alleged that he had conspired to

distribute cocaine base. Long was convicted of conspiracy to distribute cocaine powder and sentenced to 127 months in prison, to be followed by five years’ supervised release. Broadnax was convicted of

conspiracy to distribute both crack and cocaine powder. He was sentenced to 292 months in prison, to be followed by five years’ supervised release. Long and Broadnax now appeal their convictions and

sentences. We affirm. 

I

Testimony at trial disclosed that Long supplied cocaine powder to

Broadnax. In turn, Broadnax converted the powder to crack. Broadnax sold the drug himself or through agents at a property on Fox Road

in Greensboro. 

Mike Kernodle testified that he facilitated the purchase by Long

and Ellis Billingsley of $25,000 worth of cocaine powder from an

unidentified third party in January or February 1997. Andrew Lemons

testified that he began purchasing crack from a "runner" at the Fox

Road property in January 1998. Lemons identified at least three of the

runners. Eventually, he and Broadnax became friends. Beginning in

2 UNITED STATES v. BROADNAX
March or April of 1998 and continuing until early 1999, Lemons purchased crack at the Fox Road property as often as seven times a week.

Lemons began selling crack as a runner for Broadnax in July 1998.

Lemons testified that he had seen Long at the Fox Road property.

Additionally, Lemons regularly drove Broadnax to obtain powder

cocaine from Long. Generally, they drove to Long’s residence on

Garrett Road. Broadnax routinely left between $3000 and $4000 in a

pickup truck at the property. Subsequently, Broadnax received a page,

then drove to a spot beside a road where he would pick up four

ounces of cocaine. Lemons testified that between September 1998 and

May 1999, Broadnax obtained cocaine from Long in this manner

twice a week. 

Several of Broadnax’s customers testified that they purchased

crack cocaine from Broadnax and his agents. Tracy Pruitt testified

that over the course of a year to a year and a half, she went to the Fox

Road property two to three times a week to buy crack. Ordinarily she

bought one-sixteenth of an ounce for between $80 and $100. Only

once did she buy crack directly from Broadnax; the other times, she

bought from his runners. Pruitt testified that she had seen Broadnax

cook cocaine powder into crack, had seen a kilo or more of cocaine

powder at the Fox Road property, and had seen Long on the property

once. She once sold crack for Broadnax, keeping $40 for herself and

giving him the remaining $40 from the sale. 

There was testimony about two controlled purchases of crack from

Broadnax. Berri Burris bought 2.4 grams of crack from Broadnax at

the request of Detective Phil Smith. Miyoko Watkins drove with

undercover officer Charlotte Rogers to the Fox Road property, where

Watkins obtained $40 worth of crack from Broadnax. 

The jury returned guilty verdicts. Long was sentenced to 127

months in prison. Broadnax stipulated at sentencing that he was

responsible for 1.49 kilograms of crack. He received a 292-month

sentence. This appeal followed. 

II

Appellants first contend that the district court improperly bolstered

the credibility of Lemons and Clark and admonished Tracy Pruitt to

UNITED STATES v. BROADNAX 3
testify truthfully, with the result that she skewed her testimony in

favor of the prosecution. The district court’s actions, Appellants contend, deprived them of a fair trial. 

Here, the district court simply asked witness Marvin Clark—

outside the jury’s presence—whether the Government had promised

that it might try to help him if the Government thought he was telling

the truth. In a similar vein, Lemons was asked on re-direct whether

he had been promised anything in return for his testimony. He replied

that he had not. On re-cross, he was asked whether he had "been

offered, not promised, but offered" anything. The district court then

inquired of Lemons whether anyone had promised that his time might

be reduced in exchange for his testimony. Finally, after Tracy Pruitt

gave vague testimony or said that she was not sure of the answers to

many questions, the district court excused the jury. The court then

admonished her to respond truthfully to the questions posed to her.

The jury was brought back in, and Pruitt’s testimony became more

specific. There were no significant discrepancies between her testimony prior to the warning and that after the judge spoke to her. 

Contrary to Appellants’ contention, the district court’s actions were

not an abuse of discretion. The court fulfilled its obligation to reasonably control the interrogation of witnesses and the presentation of evidence so as to promote the ascertainment of truth. Fed. R. Evid.

611(a), 614. It is inconceivable that either Long or Broadnax was

prejudiced by the court’s speaking to the three witnesses. Further, any

prejudice was cured by the instruction that the jury was to determine

the facts based solely on the evidence and that the jury should not

assume from the court’s comments and questions during trial that the

court had an opinion about the case. See United States v. Villarini,

238 F.2d 530, 536-37 (4th Cir. 2001). 

III

Appellants argue that the district court erred in admitting the testimony of Kernodle and Clark. Among other things, their testimony

completed the story of the criminal activity on trial. See United States

v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994) (internal quotation

marks omitted). Further, it fulfilled all the criteria for the admission

of evidence under Fed. R. Evid. 404(b), as set forth in United States

4 UNITED STATES v. BROADNAX
v. Queen, 132 F.3d 991, 995 (4th Cir. 1997). Admission of the testimony was not an abuse of discretion. 

IV

Long and Broadnax claim that their sentences violate the rule of

Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi held that

"[o]ther than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt." Id. at

490. Based on Apprendi, we recently held that "drug quantities must

be treated as elements of aggravated drug trafficking offenses under

21 U.S.C.A. § 841 (West 1999 & Supp. 2001)." United States v.

Promise, 255 F.3d 150, 152 (4th Cir. 2001) (en banc). Further, failure

to charge a specific threshold drug quantity and to submit the quantity

issue to the jury constitutes plain error if the defendant’s sentence

exceeds the applicable statutory maximum. Id. at 156-57. 

Here, Long was charged with conspiracy to distribute a threshold

amount (in excess of 500 grams) of cocaine powder.* However, in

violation of Apprendi, it was the judge—not the jury—who determined how much cocaine Long was accountable for. Nonetheless,

because Long’s sentence was within the statutory maximum of twenty

years set forth at 21 U.S.C.A. § 841(b)(1)(C), see Promise, 255 F.3d

at 156-57, we affirm the sentence. 

Broadnax, who did not have a previous felony drug conviction, was

charged with distributing specific amounts of crack and powder

cocaine. The judge found Broadnax responsible for 1.49 kilograms of

crack. Ordinarily, this plain Apprendi violation would require that we

vacate the sentence and remand the matter for resentencing within the

twenty-year statutory maximum. However, Broadnax stipulated that

he was responsible for 1.49 kilograms of crack. Given his stipulation

and evidence presented that substantiated his accountability for at

least this amount of crack, Broadnax cannot show that the 292-month

sentence, which is within the sentencing range set forth at 21

U.S.C.A. § 841(b)(1)(A)(iii), "was longer than that which would oth-

*That portion of the indictment charging Long with conspiracy to distribute crack was dismissed. 

UNITED STATES v. BROADNAX 5
erwise have been authorized by the jury verdict." See United States

v. Stewart, 256 F.3d 231, 252 (4th Cir. 2001). As such, he cannot

show that the error in this case affected his substantial rights, and his

sentence is affirmed. 

V

We therefore affirm the convictions and sentences. 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

6 UNITED STATES v. BROADNAX