UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4414

JOHN MARSHALL,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4518

DANIEL SALEH,

Defendant-Appellant.

Appeals from the United States District Court

for the Northern District of West Virginia, at Wheeling.

Frederick P. Stamp, Jr., Chief District Judge.

(CR-95-28)

Submitted: January 14, 1997

Decided: April 17, 1997

Before WIDENER, WILKINS, and HAMILTON, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Alan G. McGonigal, BAILEY, RILEY, BUCH & HARMAN, L.C.,

Wheeling, West Virginia; William C. Gallagher, CASSIDY, MYERS,
COGAN, VOEGELIN & TENNANT, L.C., Wheeling, West Virginia,

for Appellants. Paul T. Camilletti, Assistant United States Attorney,

Wheeling, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Appellants John Marshall and Daniel Saleh were indicted and convicted by a jury of conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. § 846 (1994). Marshall and Saleh

received a sentence of twenty-four months and twenty-one months,

respectively. Both Marshall and Saleh appeal their convictions. The

two cases have been consolidated for appellate review.

Marshall contends that the district court erred in denying his

motion for a new trial, excluding relevant expert testimony, and in

denying a two-level reduction in his sentence for being a "minor participant." Saleh asserts that the district court erred in denying his

motions for judgment of acquittal and variance between the indictment and proof at trial. Additionally, Saleh maintains that the court

improperly attributed to him under "relevant conduct" certain drug

quantities associated with co-defendant Marshall. We affirm both

convictions and sentences.

I.

The evidence at trial, viewed in the light most favorable to the government, disclosed that Tony Foglio, the government's chief witness,

was involved in a drug-trafficking scheme whereby he received shipments of marijuana from California and distributed the drugs at a

profit in West Virginia. Foglio testified that on three occasions Saleh

provided Foglio a key to a vacant residence for the purpose of receiv-

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ing marijuana shipments. Saleh then took Foglio to a nearby motel,

where Saleh registered in his name on Foglio's behalf, all in exchange

for monetary compensation. From the motel, Foglio broke down the

shipment of compressed marijuana and negotiated sales. Foglio

admitted that he and Saleh did not discuss the packages. The first

shipment contained approximately four kilograms of marijuana, the

second four or five kilograms, and the third approximately six kilograms.

Foglio further testified that Saleh also drove Foglio to Pittsburgh

to a "head shop" to buy a scale that could weigh large amounts of

marijuana. According to Foglio, Saleh was aware of the express purpose of the trip. On another occasion, Saleh also transferred $6200 in

cash via Western Union to Foglio's supplier in California because

Foglio wanted to keep his name "out of things." In return, Saleh

received further monetary compensation.

Saleh introduced Foglio to Marshall in an effort to assist Foglio

with transportation. According to Foglio, Marshall, on at least two

occasions, rented a car in his own name on behalf of Foglio in

exchange for cash. Additionally, Marshall offered his place of residence for the receipt of packages for a monetary fee. The first shipment to Marshall's residence contained approximately six to seven

kilograms of marijuana. Foglio arrived after delivery of the package

and opened it in Marshall's presence. Foglio remarked that Marshall

was surprised at the amount of marijuana present. Soon thereafter,

both men drove to a hotel, where Marshall registered under his name,

another service for which he received compensation. Foglio maintained at trial that the purpose of renting the room was to "break

down" the marijuana and place phone calls to let others know that he

was "ready to do business again." Two more shipments were received

at Marshall's residence. The three shipments totalled nineteen kilograms.

Following the return of guilty verdicts on the conspiracy charge, a

presentence report was prepared for Marshall, which assigned him a

base offense level of sixteen. See USSG§ 2D1.1(c)(12). The court

sentenced Marshall in accordance with the report, denying Marshall's

motion for a two-level reduction based on his role as a "minor participant." The court attributed Saleh with thirty-four kilograms of mari-

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juana, nineteen of which the court assessed against him under relevant

conduct. Although the court assigned Saleh a base offense level of

eighteen, the court gave Saleh a two-level reduction for his role as a

"minor participant" in the conspiracy.

We address each of Appellants' arguments in turn.

II.

Marshall first objects to the court's refusal to grant him a new trial

on the basis that evidence weighed heavily against the verdict.1 Specifically, Marshall alleges that the exhibits introduced into evidence

by the Government alone are insufficient to sustain a verdict against

him and that the only incriminating evidence came from an incredible

witness.

This Court reviews the denial of a motion for new trial for abuse

of discretion. United States v. Campbell, 977 F.2d 854, 860 (4th Cir.

1992). A district court should grant a new trial if the evidence weighs

so heavily against the verdict that it would be unjust to enter judgement. United States v. Arrington, 757 F.2d 1484, 1485 (1985).

To sustain a conspiracy conviction, the evidence must show only

that the defendant knew of the conspiracy's purpose and took some

action reflecting his participation. United States v. Locklear, 24 F.3d

641, 644 (4th Cir. 1994); United States v. Brooks, 957 F.2d 1138,

1147 (4th Cir. 1992). The Government may use circumstantial evidence to demonstrate a defendant's participation in a conspiracy and

his knowledge of the conspiracy's objectives. United States v.

Glasser, 315 U.S. 60, 80 (1942). If the defendant "joins the conspir-

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1 In its brief, the Government contends that Marshall is procedurally

barred from contesting the court's denial of Marshall's motion for a new

trial on the basis of insufficient evidence because, in his motion, he only

seeks a judgment of acquittal in challenging the sufficiency of evidence.

However, the motion generally sought "Judgment of Acquittal and/or

New Trial," and the memorandum in support of his motion, which the

district court reviewed, specifically sought a new trial as an alternative

to a judgment of acquittal. Therefore, we find that the merits of Marshall's claim are properly before this Court.

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acy with an understanding of the unlawful nature thereof and willfully

joins in the plan on one occasion, it is sufficient to convict him of

conspiracy." United States v. Bell, 954 F.2d 232, 236 (4th Cir. 1992).

In this case, the Government offered ample evidence that a conspiracy existed, and that Marshall knew about it and acted to further it.

Foglio testified that Marshall rented vehicles and motel rooms on his

behalf and on several occasions agreed to receive packages at his residence. Even assuming Marshall did not initially know the contents of

the packages he received, Foglio testified that he opened the package

in Marshall's presence more than once and that Marshall was surprised at the quantity of marijuana. The Government introduced

exhibits of car rental, shipment, and motel registration records in Marshall's name, generally consistent with Foglio's recitation of events.

To the extent that Marshall's claim regarding the sufficiency of

evidence relates solely to matters of Foglio's credibility, such determinations are within the sole province of the jury and are not susceptible to judicial review. United States v. Lowe , 65 F.3d 1137, 1142

(4th Cir. 1995), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3231 (U.S.

Oct. 7, 1996) (No. 95-1659). Accordingly, we find that the court did

not err in denying Marshall's motion for a new trial.

Marshall also contends that the trial court erred in excluding the

expert testimony of H. Wayne Dickson, a certified addictions counselor, who would have testified regarding the effects of heavy and

sustained drug use on an individual's memory and perception of

events that occurred during the period of drug use. Marshall offered

such testimony in an effort to impeach Foglio, who allegedly used

drugs heavily during the period in question.

An expert may only testify about "scientific, technical, or other

specialized knowledge" that "will assist the trier of fact to understand

the evidence or to determine a fact in issue." Fed. R. Evid. 702. Under

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),

in order for such expert testimony to be properly admitted under the

Rules, the expert testimony must be supported by appropriate validation and it must assist the trier of fact in understanding the evidence

or in determining a fact in issue. See United States v. Dorsey, 45 F.3d

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809, 813 (4th Cir.), cert. denied, #6D6D 6D# U.S. ___, 63 U.S.L.W. 3907

(U.S. June 26, 1995) (No. 94-9433).

We find that the court properly refused to admit the proffered

expert testimony because it clearly fails to meet the second part of the

Daubert test. To satisfy Daubert's second prong, the proffered evidence must fall outside the common knowledge of jurors. Dorsey, 45

F.3d at 814-15. Here, assessing the impact of drug use on a witness'

credibility is something that can sufficiently be done by the jury without help from an expert. See id. at 815. Therefore, the trial court properly excluded the proffered testimony.

Lastly, Marshall argues that he should have received a reduction in

his offense level for being a "minor participant" as defined by USSG

§ 3B1.2. A defendant seeking a mitigating adjustment under § 3B1.2

must convince the district court of its application by a preponderance

of the evidence. United States v. Palinkas, 938 F.2d 456, 460 (4th Cir.

1991). The critical inquiry is not just whether the defendant has done

fewer "bad acts" than his codefendants, but whether the defendant's

conduct is material or essential to committing the offense. Id. Appellate review of a district court determination regarding the defendant's

role in the offense is governed by the clearly erroneous standard.

United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989).

While Marshall may have been less culpable than others in the conspiracy, his acts in furtherance thereof were material and substantial.

The evidence revealed that Marshall provided great assistance to

Foglio by receiving shipments on his behalf knowing that they contained marijuana and by securing transportation and lodging for drug

distribution activity.

Marshall argues that because co-defendant Saleh received a twolevel reduction for his role as a "minor participant" and because they

are equally culpable, he too should have received a similar reduction.

The record reflects that Saleh was held responsible under "relevant

conduct" for six shipments (thirty-four kilograms), only three of

which he was directly responsible. Marshall, however, was held liable

for only those shipments (nineteen kilograms) directly related to his

own actions. Given the greater amount of marijuana attributed to

Saleh as relevant conduct, the court, agreeing with the probation offi-

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cer, concluded that a minor role reduction for Saleh was appropriate.

Under such circumstances, the court's decision to refuse a reduction

in Marshall's sentence as a "minor participant" is not clearly erroneous.

III.

Saleh maintains that the court erroneously denied his motion for

judgment of acquittal. This Court reviews a denial of a motion for

acquittal under a sufficiency of the evidence standard. Fed. R. Crim.

P. 29; see United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir.

1992). To sustain a conviction the evidence when viewed in the light

most favorable to the government, must be sufficient for a rational

trier of fact to have found the essential elements of the crime beyond

a reasonable doubt. United States v. Brewer, 1 F.3d 1430, 1437 (4th

Cir. 1993); see Jackson v. Virginia, 443 U.S. 307, 319 (1979). This

Court does not weigh the evidence or review credibility of witnesses

in resolving issues of substantial evidence. United States v. Saunders,

886 F.2d 56, 60 (4th Cir. 1989).

The evidence discloses that on three occasions, Saleh provided

Foglio keys to his vacant home to receive packages in exchange for

$200. Additionally, Saleh registered for Foglio at a motel in exchange

for $30 after Foglio received the first package, drove Foglio to a

"head shop" for the purpose of purchasing digital scales, transferred

large amounts of cash to Foglio's cousin in California, and introduced

Foglio to Marshall. We find that the Government introduced sufficient evidence from which a rational trier of fact could conclude that

Saleh knew of the conspiracy's purpose and actively participated in

it.

Saleh also contends that the amount of marijuana attributed to him

should have been limited to the amount stated in the bill of particulars.2

Because the bill of particulars only attribute to Saleh two marijuana

shipments, totalling nine kilograms, rather than the three for which he

was ultimately held responsible, Saleh maintains that his ultimate

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2 Although Saleh claims a variance between the indictment and proof

at trial, his argument in fact relates to a variance between proof at trial

and the bill of particulars.

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conviction exceeds the amount of punishment to which he was placed

on notice.

The purpose of a bill of particulars is to fairly apprise the defendant

of the charges against him so that he may adequately prepare a

defense and avoid surprise at trial, not to provide detailed disclosure

of the Government's evidence in advance of trial. United States v.

Fletcher, 74 F.3d 49, 53 (4th Cir.), cert. denied, ___ U.S. ___, 65

U.S.L.W. 3260 (U.S. Oct. 7, 1996) (No. 95-9447). A bill of particulars does not constitute a part of the indictment nor does it change or

amend the charges set forth in the indictment; it"merely amplifies the

indictment by providing missing or additional information so that the

defendant can effectively prepare for trial." Id. Moreover, "the quantity of drugs involved in an offense does not become a substantive

element of the crime to be proved at trial simply because an amount

is indicated in the indictment or information." Id.

Saleh's contention that the bill of particulars failed to sufficiently

apprise him of the extent of his charges is without merit. Under sections l, m, and n of "overt acts," the indictment specifically charges

Saleh with receiving three shipments of marijuana from California.

While the bill of particulars may not have specified the third shipment of marijuana that Saleh received, it is clear that the indictment

sufficiently placed Saleh on notice that the Government intended to

present evidence at trial regarding the third shipment. Hence, because

Saleh was not convicted of an offense omitted from the indictment

and there is no evidence of unfair surprise which prevented him from

preparing an adequate defense, any discrepancy between the bill and

the Government's proof at trial was harmless. Fletcher, 74 F.3d at 53-

54. Accordingly, the court properly denied Saleh's motion for a variance.

Lastly, Saleh alleges that the court erred in attributing to him as relevant conduct the nineteen kilograms of marijuana that were shipped

to co-defendant Marshall. Essentially, Saleh maintains that the Government failed to prove that Marshall's involvement in drug distribution activity was a reasonably foreseeable consequence of Saleh's

introduction of Marshall to Foglio.

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In a conspiracy, relevant conduct includes all acts committed by

the defendant and others which are in furtherance of the conspiracy,

reasonably foreseeable to the defendant, and within the scope of the

criminal activity the defendant agreed to undertake. USSG

§ 1B1.3(a). The government must establish the existence of these

other incidents by a preponderance of the evidence. United States v.

Jones, 31 F.3d 1304, 1316 (4th Cir. 1994). Whether the government

has successfully shouldered its burden of proof is a question of fact

reviewed for clear error. Id.

In the instant case, the district court found that Saleh was aware of

and actively participated in the conspiracy and encouraged Marshall's

involvement as a co-conspirator. Given Saleh's repeated involvement

with Foglio and his introduction of Foglio to Marshall for the purposes of aiding Foglio in various drug distribution activities, we hold

that the district court did not err in attributing to Saleh for sentencing

purposes the nineteen kilograms of marijuana associated with Marshall.

Accordingly, we 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

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