UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4679

JAMES ALBERT BROWN,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Dennis W. Shedd, District Judge.

(CR-95-443)

Submitted: March 24, 1998

Decided: April 7, 1998

Before MURNAGHAN, HAMILTON, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Parks N. Small, Federal Public Defender, Columbia, South Carolina,

for Appellant. J. Rene Josey, United States Attorney, Nancy C.

Wicker, First Assistant United States Attorney, Mark C. Moore,

Assistant United States Attorney, Columbia, South Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:

James Albert Brown appeals his convictions for conspiracy to possess with intent to distribute and to distribute heroin, cocaine, and

cocaine base;1 possession with intent to distribute and distribution of

heroin, cocaine, and cocaine base;2 and, money laundering.3 He was

sentenced to a term of life imprisonment. Finding no reversible error,

we affirm.

In the first issue on appeal, Brown argues that the district court

committed reversible error when it instructed the jury as follows on

reasonable doubt:

Now, while the Government's burden of proof is a strict or

heavy burden, it is not necessary that the Government must

prove Mr. Brown guilty beyond all possible doubt. The law

only requires that the Government's proof exclude any reasonable doubt in your mind concerning Mr. Brown's guilt.

(Supp. JA at 37). The district court also instructed the jury that,

"under the law, Mr. Brown is presumed to be innocent of the crimes

alleged. And the burden is on the Government to prove to you beyond

a reasonable doubt that he is guilty before you may find him so." (Id.

at 36). The district court indicated that the Government bore this burden throughout the trial by stating, "[Mr. Brown] is not required to

prove innocence or produce any evidence at all. The Government has

the burden of proving guilt beyond a reasonable doubt, and if it fails

to do so, you must acquit Mr. Brown." (Id. at 37). Brown challenges

the "beyond all possible doubt" language that appears in the district

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1 See 21 U.S.C. § 846 (1994).

2 See 21 U.S.C. § 841(a)(1) (1994).

3 See 18 U.S.C. §§ 1956(a)(1)(B)(i), 1957 (1994).

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court's instructions. According to Brown, this attempt to define reasonable doubt lessened the Government's burden of proof. We find

this argument to be without merit.

We have consistently instructed district courts not to define reasonable doubt.4 However, the district court's decision to give a reasonable doubt instruction is not necessarily reversible error. In such a

case, we must examine whether the instruction "taken as a whole . . .

correctly conve[ys] the concept of reasonable doubt to the jury" and

whether there is a "reasonable likelihood" that the jury understood the

instructions to allow a conviction based on proof insufficient to meet

the Winship5 standard. 6

We have previously found that the "beyond all possible doubt"

phrase, as challenged in this appeal, is not an attempt on the part of

the district court to define the concept of reasonable doubt and that

it gives an accurate description of the Government's burden in a criminal proceeding.7 We reject Brown's argument that Adkins should be

revisited in light of the United States Supreme Court's pronouncements in Sullivan v. Louisiana, 508 U.S. 275 (1993), and Cage v.

Louisiana, 498 U.S. 39 (1990). In Sullivan and Cage, the Court found

unconstitutional the trial courts' nearly identical definitions of the reasonable doubt standard because they allowed for"a finding of guilt

based on a degree of proof below that required by the Due Process

Clause."8 However, Sullivan and Cage are both inapposite to this case

because they addressed the trial courts' errors in misdefining and

thereby diluting the reasonable doubt standard, whereas, in this case,

no attempt was made to define reasonable doubt. Moreover, neither

of these cases included instructions that contained the "beyond all

possible doubt" language as found in the present case and in Adkins;

therefore, we find that neither Sullivan nor Cage serve to vitiate or

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4 See United States v. Reives, 15 F.3d 42, 45 (4th Cir. 1994).

5 See In re Winship, 397 U.S. 358, 364 (1970) (holding that the government must prove beyond a reasonable doubt every element of a charged

offense).

6 Victor v. Nebraska, 511 U.S. 1, 5-6 (1994).

7 See United States v. Adkins, 937 F.2d 947, 950 (4th Cir. 1991).

8 Cage, 498 U.S. at 41; see Sullivan, 508 U.S. at 277.

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undermine the rationale in Adkins. Further, contrary to Brown's assertions, we find that the district court's instructions on reasonable doubt

were neither misleading nor confusing.9 

Finally on this issue, we reject Brown's contention that the district

court's reasonable doubt instructions are unconstitutional in light of

United States v. Colon-Pagan, 1 F.3d 80, 81 (1st Cir. 1993). In

Colon-Pagan, the district court erroneously instructed the jury that the

government was required to prove guilt beyond a reasonable doubt,

which "did not mean guilt `beyond all possible doubt.' Rather, that

proof meant `proof of such a convincing character that a person . . .

would be willing to rely and act upon it.'"10 The First Circuit took no

issue with the "beyond all possible doubt" phrase, but found plain

error with the district court's definition of reasonable doubt as proof

that a person "would be willing to rely and act upon."11 The court

found that this definition may have allowed the jury to convict the

defendant on the basis of evidence "no stronger than might reasonably

support a decision to go shopping or to a movie" or any of life's ordinary decisions.12

When read in context with the entire jury instruction, the district

court here repeatedly referred to the Government's obligation to

prove each element of the charges beyond a reasonable doubt; therefore, there was no reasonable likelihood that the jury misunderstood

the instruction to allow a conviction based on insufficient proof.13

Accordingly, we reject Brown's challenge to the district court's

instruction on reasonable doubt.

Next, Brown claims that there was insufficient evidence to convict

him of three counts of engaging in monetary transactions in property

derived from specified unlawful activity, in violation of 18 U.S.C.

§ 1957 (1994). At trial, the Government presented evidence that on

three separate days Brown exchanged more than $10,000 for the pur-

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9 See United States v. Love, 767 F.2d 1052, 1060 (4th Cir. 1985).

10 Colon-Pagan, 1 F.3d at 81.

11 Id.

12 Id.

13 See Victor, 511 U.S. at 6; Reives, 15 F.3d at 45.

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chase of several automobiles. James Wannamaker, an employee of

the South Carolina Department of Transportation responsible for auctioning surplus or used state-owned automobiles, testified that on July

29, 1992, Brown purchased nine cars for $27,195; on September 2,

1992, Brown purchased eighteen cars for $50,190.50; on October 7,

1992, Brown purchased four cars, spending $9135; and, on November 18, 1992, Brown purchased six cars, spending $20,272.50.14

In reviewing whether the evidence was sufficient to convict a

defendant, "the relevant question is whether, after 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."15 The jury is responsible for weighing the credibility of the evidence and resolving any apparent conflicts.16

The statute under which Brown now challenges his convictions

provides:

Whoever . . . knowingly engages or attempts to engage in

a monetary transaction in criminally derived property that is

of a value greater than $10,000 and is derived from specified unlawful activity, shall be punished as provided in subsection (b).17

Brown does not dispute that he made these purchases or that the property was derived from "specified unlawful activity" as defined by the

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14 Only the July 29, September 2, and November 18, 1992 purchases,

in which the total amount spent exceeded $10,000, were charged as violations of 18 U.S.C. § 1957.

15 Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v.

Murphy, 35 F.3d 143, 148 (4th Cir. 1994).

16 See Murphy, 35 F.3d at 148.

17 18 U.S.C. § 1957(a) (1994); United States v. Campbell, 977 F.2d

854, 859 (4th Cir. 1992). "Monetary transaction" is defined as "the

deposit, withdrawal, transfer, exchange . . . of funds or a monetary instrument . . . by, through, or to a financial institution," and "criminally

derived property" is defined as "property constituting, or derived from,

proceeds obtained from a criminal offense." 18 U.S.C. § 1957(f)(1), (2)

(1994); see United States v. Moore, 27 F.3d 969, 976 (4th Cir. 1994).

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statute. Brown's argument on appeal is that because he bid on each

car separately, each car purchased was a separate and distinct monetary transaction. Because none of the cars individually cost more than

$10,000, Brown contends that he did not engage in a monetary transaction with property of a value greater than $10,000.18 He argues that

it was improper for the Government to aggregate the total amount

spent on a particular day to circumvent the jurisdictional value

requirement and cites United States v. Denemark , 779 F.2d 1559,

1563 (11th Cir. 1986), for support. However, the facts of Denemark,

a structuring case under 18 U.S.C. § 1001, are far removed from this

case and we find the case to be unpersuasive.

Here, the district court properly instructed the jury that if they

found that each car purchased amounted to a separate monetary transaction they could not add the value of the property involved in the

separate transactions together and, if so, the value element of the

offense could only be satisfied if the value of the property in a single

transaction was greater than $10,000. However, if the jury found that

the total number of cars purchased on a particular day constituted a

single monetary transaction, they could then add the value of the

property together to determine if the total amount exceeded $10,000.

Viewing the evidence in the light most favorable to the Government, we find that the evidence was more than sufficient for the jury

to conclude, as it did, that Brown's purchase of several automobiles

with one lump-sum payment amounted to a single monetary transaction. Further, because there was more than ample evidence that the

value of each of the monetary transactions exceeded the $10,000

jurisdictional amount, we find no ambiguity in the statute's application to Brown's conduct and deny his request for lenity.19 Accord-

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18 The Government concedes that Brown bid on each car separately but

maintains that since he paid for the cars at the end of the auction in a

lump-sum payment, there was but a single monetary transaction.

19 See United States v. Jenkins , 58 F.3d 611, 613 (11th Cir. 1995) (concluding the rule of lenity required section 1957 be construed narrowly

because of its ambiguity in addressing "whether[it] applies only to single

transactions exceeding $10,000 or includes a series of transactions that

total more than $10,000." The allegation of error was that the court

"erred in including kickbacks of less than $10,000.").

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ingly, we affirm Brown's convictions under 18 U.S.C.§ 1957 as

properly supported by sufficient evidence.

In Brown's final claim he asserts that the Government improperly

vouched for the credibility of six witnesses who were unindicted coconspirators of Brown by eliciting details regarding the truthfulness

provisions of their plea agreements on direct examination. Brown also

suggests that the district court erred by allowing testimony that tended

to show that several of the witnesses had performed their agreement

satisfactorily and had reaped its rewards. And Brown asserts that

when the district court instructed the jury on the details of guideline

sentencing, including how downward departures are determined, it

impermissibly suggested that the court found these witnesses' testimony to be credible. We disagree.

Brown only challenged the admission of two plea agreements;

therefore, we review the admission of those plea agreements for an

abuse of the district court's discretion,20 and review the admission of

the remaining plea agreements for plain error.21 Further, we review

Brown's claim that the district court itself improperly bolstered the

credibility of the Government's witnesses for abuse of discretion.22

We have generally held that it is error for the Government to bolster or vouch for its own witnesses.23 However, the Government is

allowed to explain its investigation, procedures or relationship with its

witnesses. This includes presenting evidence of the details of the witnesses' plea agreements and their promises to testify truthfully.24

Here, we find that the Government neither bolstered nor vouched

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20 See United States v. Henderson , 717 F.2d 135, 138 (4th Cir. 1983).

21 See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725,

731-32 (1993).

22 See United States v. Russell , 971 F.2d 1098, 1107 (4th Cir. 1992).

23 See United States v. Samad, 754 F.2d 1091, 1100 (4th Cir. 1984).

24 See Henderson, 717 F.2d at 138 (4th Cir. 1983) (no error in Government's eliciting evidence of promise to testify truthfully made in plea

agreement, whether or not defense intends to use plea agreement to

impeach witnesses' credibility).

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for the credibility of its witnesses. The Government did not derive any

improper advantage from the witnesses' promises to be truthful nor

did it imply to the jury that it possessed special knowledge of the testifying co-conspirators' veracity. Further, the Government gave no

personal assurances that its witnesses were trustworthy.25 Finally, the

district court's explanation of how the sentencing guidelines deals

with downward departures in no way suggested to the jury that it

found any of the witnesses' testimony credible.

Therefore, finding no reversible error, we affirm Brown'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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25 See United States v. Lewis, 10 F.3d 1086, 1089 (4th Cir. 1993).

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