UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4895

MICHAEL RAY SKIPPER, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Danville.

Jackson L. Kiser, Senior District Judge.

(CR-97-4)

Submitted: March 9, 1999

Decided: June 8, 1999

Before NIEMEYER and MOTZ, Circuit Judges, and

HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Michael Ray Skipper, Jr., Appellant Pro Se. Donald Ray Wolthuis,

OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Michael Ray Skipper appeals his conviction on one count of conspiracy to possess with intent to distribute cocaine and cocaine base,

21 U.S.C. § 846 (1994), and four counts of possession with intent to

distribute or distribution of cocaine base, 21 U.S.C. § 841(a)(1)

(1994). Skipper contends that the Government failed to present adequate evidence to support the conspiracy conviction and that there

were several trial errors. Finding no reversible error, we affirm.

Beginning in 1995 and continuing until January 1997, several law

enforcement agencies conducted a cooperative investigation of drug

and firearm trafficking in the city of Danville and Pittsylvania

County, Virginia. A multi-count indictment was filed in January

1997, charging Skipper and eight other individuals with various narcotics offenses. Skipper and five co-conspirators were jointly tried

before a jury.

We examine challenges to the sufficiency of the evidence by viewing the evidence at trial in the light most favorable to the prosecution,

including all reasonable inferences that can be drawn from the evidence. See Glasser v. United States, 315 U.S. 60, 80 (1942). The evidence at trial consisted of testimony from investigators and

confidential informants. Investigators arranged for an informant,

Larry Cunningham, to purchase crack cocaine from Skipper on four

occasions. The transactions were audio recorded and videotaped.

Cunningham testified to the circumstances surrounding the four transactions and led the jury through the videotape recordings. Skipper

told Cunningham that Robert Lee Trent, or "Junior Trent," supplied

him with the crack cocaine. During two of the transactions, Robert

Lee Trent was present and participated in the transaction. On one of

those occasions, Darryl Hoges was also present and participated.

The indictment stated that Darryl Hoges was also known as "Junior

Trent." During the trial another confidential informant, Cathy Ann

Johnson, stated that she knew Junior Trent to be Darryl Hoges and did

not know Robert Lee Trent.

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Skipper contends that the Government presented insufficient evidence to convict him of conspiracy. When assessing the sufficiency

of the evidence of a criminal conviction on direct review, the jury verdict must be sustained if, "viewing [the evidence] in the light most

favorable to the Government, `any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt.'" United States v. Hudgins, 120 F.3d 483, 486 (4th Cir. 1997)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We afford

the Government all reasonable inferences that flow from the circumstantial and direct evidence, see United States v. Burgos, 94 F.3d 849,

858 (4th Cir. 1996) (en banc), and do not weigh the evidence or consider the credibility of witnesses. See United States v. Arrington, 719

F.2d 701, 704 (4th Cir. 1983). The necessary elements to support a

conspiracy conviction include: (1) an agreement among the defendants to do something illegal; (2) knowing and willing participation

in the agreement; and (3) an overt act in furtherance of the purpose

of the agreement. See United States v. Meredith , 824 F.2d 1418, 1428

(4th Cir. 1987). Knowledge and participation in the conspiracy may

be proved by circumstantial evidence. See id. 

In support of his claim, Skipper places great emphasis on the confusion as to the identity of Junior Trent. He suggests that the name

Junior Trent was created to provide a link between a series of conspiracies. We find, however, that the evidence was clearly sufficient to

support the jury's finding that Skipper was involved in a conspiracy.

Cunningham testified as to Skipper's involvement with two other coconspirators. His testimony was supplemented by the videotape evidence. Specifically, the evidence showed that Skipper relied on Junior

Trent to provide him with crack cocaine. Cunningham observed Skipper getting the crack cocaine from Robert Lee Trent. Furthermore,

there was direct evidence of Skipper, Trent, and Hoges providing

crack cocaine to Cunningham.

Skipper also contends that the district court should have severed his

trial from that of his co-conspirators. Skipper, who did not move for

a severance at trial, contends that severance was warranted because

the court admitted evidence of conspiracies in which he was not

involved and this evidence prejudiced his defense. Skipper also contends that he needed the testimony of co-defendants.

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Because Skipper did not seek a severance, we review only for plain

error.* See Fed. R. Crim. P. 52(b). To establish plain error, Skipper

must demonstrate that: "(1) the asserted defect in the trial was, in fact,

error; (2) the error was plain; and (3) the error affected his substantial

rights." United States v. Jackson, 124 F.3d 607, 614 (4th Cir. 1997),

cert. denied, ___ U.S. ___, 66 U.S.L.W. 3457 (U.S. Jan. 12, 1998)

(No. 97-6989).

It is well established that defendants who are charged in the same

conspiracy should be tried together. See United States v. Reavis, 48

F.3d 763, 767 (4th Cir. 1995). The party seeking severance must

establish that he would be prejudiced from a joint trial, not that he

stood a better chance of acquittal had there been separate trials. See

United States v. Brooks, 957 F.2d 1138, 1145 (4th Cir. 1992).

Because Skipper also contends that he needed the testimony of a codefendant, he must show: "(1) a bona-fide need for the testimony of

his co-defendant; (2) the likelihood that the co-defendant would testify at a second trial and waive his Fifth Amendment privilege; (3) the

substance of his co-defendant's testimony; and (4) the exculpatory

nature and effect of such testimony." Reavis , 48 F.3d at 767.

Skipper does not provide any facts supporting his claim that a severance was necessary. He does not refer to any evidence that prejudiced his defense. Nor does he specify which co-defendants he

needed to have testify in his defense. Accordingly, we find no plain

error.

Skipper also contends that the district court improperly admitted

evidence of prior bad acts in violation of Fed. R. Evid. 404(b). There

is no indication, however, that evidence of prior bad acts was admitted at all, much less improperly. The only evidence that Skipper states

was improper bad act evidence involved a weapon owned by a codefendant that was confiscated by police after a domestic quarrel.

Outside of the jury's presence, the co-defendant's counsel objected to

admission of the weapon. The Government agreed that the weapon

would not be used as direct evidence. Skipper fails to identify any

other evidence of prior bad acts that was improperly admitted. We

thus find this claim is without merit.

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*Two co-defendants' motions for severance were denied.

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Skipper further argues that the court admitted into evidence

improper hearsay testimony. However, Skipper actually identifies

only one instance of improper hearsay testimony. In that instance, the

district court sustained defense counsel's objection and instructed the

jury to disregard the statement. All other allegedly improper hearsay

evidence actually constituted admissions by Skipper, statements based

upon a witness's personal knowledge, or statements made by coconspirators in the course of and in furtherance of the conspiracy.

None of this testimony was erroneously admitted into evidence.

Skipper also contends that the prosecution violated a court order

and the federal rules of criminal procedure by not disclosing the

names of certain witnesses until trial. The prosecutor stated that he

was late in disclosing the names of some of the witnesses because

investigation as to what the witnesses could offer was ongoing. The

court permitted the prosecution to present the witnesses over defense

counsel's objection, but ordered the prosecutor to provide the defense

the substance of the witnesses' testimony before they testified.

We review a court's regulation of discovery matters for an abuse

of discretion. See United States v. Muse, 83 F.3d 672, 675-76 (4th Cir.

1996). Skipper fails to indicate how he was prejudiced by the court's

decision. He does not claim that the untimely disclosure led to his

counsel being unprepared. Nor does he claim with any specificity that

there was impeachment evidence that would have been revealed had

counsel more time to investigate the witnesses. For these reasons, we

find that the district court did not abuse its discretion.

Skipper maintains that the prosecution failed to disclose exculpatory evidence. See Giglio v. United States, 405 U.S. 150 (1972);

Brady v. Maryland, 373 U.S. 83 (1963). This claim is without merit

because Skipper fails to specify any material evidence that was not

disclosed.

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

1998), in support of his contention that prosecutors improperly used

paid informants as trial witnesses. In the cited Singleton opinion, a

panel of the Tenth Circuit concluded that the Government violated 18

U.S.C. § 201(c)(2) (1994) by offering leniency to witnesses in

exchange for testimony. The panel opinion in Singleton, however,

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was vacated by the en banc court, see United States v. Singleton, ___

F.3d ___, 1999 WL 6469 (10th Cir. Jan. 8, 1999) (No. 97-3178). We

decline to follow the now-vacated panel decision.

In addition, Skipper claims the prosecutor suborned perjury by having the confidential informants give false testimony. Skipper contends

that because the confidential informants were paid for their testimony

or offered leniency, the testimony was false. He offers no other evidence that the prosecutor knew the testimony was false. The jury

heard evidence regarding the benefits the confidential informants

received in exchange for their testimony. In spite of hearing that evidence, the jury apparently found at least some of their testimony credible. We will not review the jury's credibility determinations. See

United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997).

Skipper contends that the prosecutor magnified this error by

improperly bolstering Cunningham's and Johnson's testimony during

closing argument. Because there was no objection to the prosecutor's

closing remarks, we review only for plain error. See Mitchell, 1 F.3d

at 239. We find no such error because Skipper fails to point to any

evidence of improper bolstering or vouching for the witnesses' credibility.

Skipper also asserts that evidence concerning the crack cocaine

sold during the four transactions should not have been admitted into

evidence because the Government failed to establish the proper chain

of custody. He makes a conclusory claim that since fifteen months

elapsed between seizure of the crack cocaine and its analysis, the substance analyzed may have not been the substance that was seized.

Skipper fails to mention that he stipulated not only to the admission

of the drug evidence and laboratory results but also to the chain of

custody. Thus, we find this claim without merit.

Finally, Skipper claims that in light of the denial of the severance

motion, the court should have instructed the jury to view the acts of

each defendant individually. Again, our review is limited to plain

error because there was no objection to the jury instructions at trial.

See United States v. Williams, 152 F.3d 294, 300 (4th Cir. 1998). We

find no such error. Because there was considerable evidence of Skipper's illegal conduct, we find no indication that the proceedings

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against him resulted in anything other than a fair and reliable determination of guilt. See id. at 300.

Accordingly, we affirm Skipper's 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 in the decisional process.

AFFIRMED

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