UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4506

DOUGLAS W. PLEASANTS,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

James C. Fox, District Judge.

(CR-96-21-F)

Submitted: April 30, 1999

Decided: June 18, 1999

Before MURNAGHAN and HAMILTON, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Joseph E. Zeszotarski, Jr., POYNER & SPRUILL, L.L.P., Raleigh,

North Carolina, for Appellant. Janice McKenzie Cole, United States

Attorney, Anne M. Hayes, Assistant United States Attorney, Christine

Witcover Dean, Assistant United States Attorney, Raleigh, North 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Unpublished opinions are not binding precedent in this circuit.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:

A jury convicted Douglas Pleasants of conspiracy to possess with

intent to distribute cocaine and marijuana. On appeal, Pleasants

alleges that the district court erred: (1) in its answer to the jury's

request for a definition of "reasonable doubt;" (2) by refusing to admit

a letter written by a Government witness into evidence; (3) by allowing the Government to read a witness' prior testimony into evidence;

and (4) in its calculation of the amount of drugs attributable to him.

Pleasants also alleges that the Government violated the federal bribery statute, 18 U.S.C. § 201 (1994), when it used the testimony of

cooperating witnesses against him. Finding no reversible error, we

affirm.

Pleasants, his brother, and his brother's son operated a major drug

trafficking ring in North Carolina for approximately fifteen years.

Pleasants' nephew pled guilty prior to trial, while Pleasants and his

brother proceeded to trial and were tried and convicted together. At

trial, a Government witness, James Clayton Bell ("Bell"), testified

that he and his drug partner from Florida made numerous trips into

South Carolina in the early 1980's to sell drugs. Bell stated that he

and his partner sold drugs to Douglas on at least five occasions.

Shortly after trial, another Government witness, Lewis Anthony

Dorsey ("Dorsey"), wrote a letter to the prosecutor asserting that Bell

gave false testimony because he never met Pleasants. Specifically,

Dorsey claimed that Bell "purchased" his testimony from another

inmate in the hope that he (Bell) would receive a more lenient sentence.1

Both Pleasants and his brother filed motions for a new trial. The district court granted Pleasants' motion but denied his brother's. All

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1 Bell has never recanted his testimony and continues to assert that he

was telling the truth.

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three defendants appealed, and the Government appealed the court's

grant of a new trial to Pleasants. We affirmed the convictions and sentences for Pleasants' brother and nephew and the district court's order

granting Pleasants' motion for a new trial.2

After approximately three hours of deliberation, the jury in the second trial sent a note to the district judge requesting a definition of

"reasonable doubt." After consulting with the attorneys for both parties, the judge advised the jury that "reasonable doubt must be determined by the jury in light of your common experience and common

sense." Pleasants alleges that use of the phrase"common experience"

lowered the Government's burden of proof because most people

believe that the majority of defendants are found guilty.

The decision to give, or not to give a jury instruction and the content of that instruction are reviewed for abuse of discretion, and we

find no such abuse here. See United States v. Burgos, 55 F.3d 933,

935 (4th Cir. 1995). This court has consistently held that district

courts should not attempt to define the term "reasonable doubt." See

United States v. Williams, 152 F.3d 294, 298 (4th Cir. 1998).

Although there may be a possible exception where the jury expressly

asks for a definition, attempts to define "reasonable doubt" should

still be avoided. Id. We find that the district judge here properly recognized circuit precedent, and his instruction, when viewed in the

context of the instructions as a whole, was not prejudicially misleading or confusing. See United States v. Reives , 15 F.3d 42, 45 (4th Cir.

1994).

We review the district court's evidentiary decisions for abuse of

discretion and find none. See United States v. Hassan El, 5 F.3d 726,

731 (4th Cir. 1993). To the extent that Pleasants challenges the district court's refusal to admit the letter to impeach Dorsey, the issue

is moot because Dorsey did not deny writing the letter, nor did he

deny the contents of the letter. Therefore, there was nothing to

impeach. To the extent that Pleasants challenges the refusal to admit

the letter as substantive evidence of bias, any error was harmless. The

district court allowed defense counsel to question both Bell and Dor-

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2 See United States v. Pleasants , Nos. 96-4795/4796/4818 (4th Cir.

Dec. 8, 1997) (unpublished).

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sey concerning the contents of the letter and to explore the issue of

bias by eliciting testimony that both witnesses were eager to receive

a reduction in their sentences by testifying.

Likewise, the district court did not abuse its discretion by allowing

the Government to read the prior testimony of a witness into evidence. Although the witness testified at Pleasants' first trial, he

refused to testify at the second, and the district court properly found

him "unavailable" pursuant to Fed. R. Evid. 804(a)(2). We find Pleasants' conclusory allegation that the Government created the witness'

unavailability to be unsupported by the record. We further reject

Pleasants' claim that the reading of the witness' prior testimony

deprived him of the opportunity to cross-examine the witness. Pleasants' attorney's cross-examination in the prior proceeding was read

into evidence, and we find that this satisfied the requirements of Rule

804(b)(1).

The district court's factual determination concerning the amount of

drugs attributable to Pleasants should be upheld absent clear error.3

See United States v. Lamarr, 75 F.3d 964, 972 (4th Cir. 1996). In

addition, Pleasants bore the burden of showing that the drug amounts

contained in the presentence report were inaccurate, and his conclusory allegations failed to satisfy this burden. See United States v.

Terry, 916 F.2d 157, 162 (4th Cir. 1990) (mere objections alone are

insufficient). As a member of the conspiracy, Pleasants was accountable for all of the drugs reasonably foreseeable to him. See United

States v. Irvin, 2 F.3d 72, 78 (4th Cir. 1993); United States v. Gilliam,

987 F.2d 1009, 1012-13 (4th Cir. 1993). Since the amount of drugs

seized (none) did not reflect the scale of the offense, the district court

was allowed to estimate the amount attributable to Pleasants. See

United States v. Kennedy, 32 F.3d 876, 887 (4th Cir. 1994).

The evidence in this case showed that the Pleasants family operated

a major drug distribution conspiracy over a period of approximately

fifteen years. Several witnesses provided testimony and information

concerning the amount of drugs they purchased from the Pleasants.

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3 The district court held Pleasants liable for all of the drugs distributed

to the four "customers" he regularly delivered to, even though he did not

personally make all of the deliveries.

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Moreover, there was significant evidence showing that Pleasants was

actively involved in the conspiracy during the charged time frame,

even though he did not make any deliveries to the"customers" in

question until after 1990. The close family relationship among the primary conspirators certainly could suggest that Pleasants was intimately aware of the conspiracy and was a trusted participant from the

beginning of the enterprise.

Pleasants cites United States v. Singleton, 144 F.3d 1343 (10th Cir.

1998), for the proposition that the Government violated the federal

bribery statute by using the testimony of cooperating witnesses. Every

circuit which has addressed this issue has rejected it, including the

Tenth Circuit in a recent en banc decision. See United States v.

Singleton, 165 F.3d 1297 (10th Cir. 1999), petition for cert. filed,

(Mar. 31, 1999) (No. 98-8758).

We therefore affirm Pleasants' conviction and sentence. 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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