UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5481

JEFFREY BLAKE JOHNSON,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5482

ROBERT LEE BRUCE, JR.,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of Virginia, at Charlottesville.

Glen M. Williams, Senior District Judge.

(CR-94-61)

Argued: December 6, 1996

Decided: February 12, 1997

Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge, and

DAVIS, United States District Judge for the District of Maryland,

sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Frederick Theodore Heblich, Jr., PARKER, MCELWAIN

& JACOBS, P.C., Charlottesville, Virginia, for Appellant Johnson;

Richard Andrew Davis, Charlottesville, Virginia, for Appellant

Bruce. Donald Ray Wolthuis, Assistant United States Attorney, Roanoke, Virginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr.,

United States Attorney, Roanoke, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Appellants Robert Lee Bruce, Jr. and Jeffrey Blake Johnson were

indicted for their participation in a drug conspiracy that operated in

the Harrisonburg, Virginia area. The indictment alleged that Bruce

was the principal and Johnson was a lieutenant in the conspiracy.

Bruce was charged with one count of drug conspiracy, nine drug distribution counts, the use of a firearm in connection with a drug

offense under 18 U.S.C. § 924(c)(1), being a felon in possession of

a firearm under 18 U.S.C. § 922(g)(1), and attempting to escape from

custody. Johnson was charged with one count of drug conspiracy and

three drug distribution counts.

The drug charges were supported by the testimony of more than

half a dozen witnesses who were involved with the defendants in

crack cocaine distribution and by surveillance evidence of controlled

buys of crack cocaine through the use of a confidential informant. The

firearms counts against Bruce arose from a reverse sting operation in

which Bruce attempted to use cash and cocaine to purchase an automatic M-16 rifle in a hotel room.

Bruce and Johnson were tried before a jury and convicted on all

counts. Bruce was sentenced to life in prison, plus a consecutive term

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of 30 years for the section 924(c) conviction. Johnson was sentenced

to 360 months in prison.

Appellants challenge these convictions on numerous grounds.

I.

Appellants first argue that the government failed to make adequate

disclosure of exculpatory evidence as required by Brady v. Maryland,

373 U.S. 83 (1963). A week before the trial, the government learned

that its confidential informant for the controlled crack cocaine purchases, Dewayne Lingenfelter, had on two occasions falsely implicated Bruce as being involved in drug transactions and had used crack

cocaine during the time frame of the investigation. J.A. at 293-95.

The government disclosed this information to defense counsel, notified the jury of it during the government's opening statement, and

even warned the jury to "think of [Lingenfelter] as the man that if you

asked if it was sunny outside, that you best go look out the window

yourself . . . there best be some corroboration for what he tells you."

J.A. at 91.

Following completion of the trial, defense counsel obtained information that Lingenfelter had pleaded guilty to a charge of making a

false report to police in violation of Virginia Code§ 18.2-461 for

false denial of his involvement in an unwitnessed single car accident.

J.A. at 60-61. The government was unaware of this conviction

because the records of it were in the General District Court for the

City of Staunton, whereas the conspiracy activity at issue in the case

sub judice took place in Harrisonburg. After the trial but prior to sentencing, Johnson and Bruce moved to dismiss the indictments, or in

the alternative for a new trial, because of the new information regarding Lingenfelter. The district court rejected the motion, stating that

the Government furnished every bit of information it had.

And this was something that, for whatever failure, did not

get to the NCIC to be picked up. And whatever it was, it

was available equally to both sides . . . . With all of the massive testimony impeaching this man . . . [disclosure of the

prior offense] would have been of such minor significance

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that I don't think it would have changed the result of this

case.

Supp. J.A. at 27-28. The information, which was unknown to the government and was kept in records located in another jurisdiction, was

not within the obligation of the government to discover. United States

v. Meros, 866 F.2d 1304, 1308 (11th Cir. 1989) ("A prosecutor has

no duty to undertake a fishing expedition in other jurisdictions in an

effort to find potentially impeaching evidence every time a criminal

defendant makes a Brady request for information regarding a government witness."). Furthermore, given the government's extensive disclosure to the defense and to the jury regarding Lingenfelter's

credibility, the information regarding the unwitnessed single car accident does not even arguably create a "reasonable probability" that the

result of the proceeding would have been different with disclosure,

nor does it "undermine[ ] confidence in the outcome of the trial."

United States v. Bagley, 473 U.S. 667, 678, 682 (1985).

II.

Appellants next argue that the district court's calculation of drug

weights was clearly erroneous. We disagree. The district court's findings that Bruce was responsible for 6.63 kilograms of cocaine and that

Johnson was responsible for more than one kilogram of cocaine are

more than adequately supported by evidence in the presentence report

adopted by the district court. The calculation for Johnson was supported by the statements of codefendants Benny Paul and Helen Harrison, who testified to having seen Johnson possess and sell cocaine.

Paul estimated the amount at one kilogram. J.A. at 759. Harrison

stated that she saw Johnson and another individual with large plastic

bags of crack cocaine covering a six-foot long table and "stated she

could not even see the tabletop and that the crack cocaine bags were

piled up on one another." J.A. at 761. Regarding Bruce, the presentence report states that "[u]nrefuted evidence" shows that the group

headed by Bruce distributed "no less than 6.63 kilograms of cocaine

base," J.A. at 824, and Bruce offers no evidence to the contrary.

Under such circumstances, the district court's reliance on the presentencing report was not clearly erroneous.

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III.

Appellants next argue that the district court erred in approving a

three-point upward adjustment for Johnson's role in the offense and

a four-point upward adjustment for Bruce's role. Again we review for

clear error and find no error.

Johnson objects to the three-point enhancement for his role as a

"manager or supervisor" of the criminal activity under U.S.S.G.

§ 3B1.1(b). The presentence report states that"[e]vidence indicates

Johnson acted as a supervisor for Bruce, overseeing the distribution

of cocaine base." J.A. at 804. Bruce's supervisory role is supported

by Harrison's testimony that she, Annette McCarthy, and Mervin

"Sonny" Jones sold cocaine for Johnson at his direction. J.A. at 760-

61, 803.

Johnson argues for the first time on appeal that he should have

received at most a two point enhancement because the presentence

report cites U.S.S.G. § 3B1.1(c), which provides for a two point

enhancement, rather than subsection (b), which provides for a three

point enhancement. However, the citation of subsection (c) in the presentence report is evidently nothing more than a clerical error, and the

sentencing hearing makes clear that Johnson, the prosecution, and the

court were aware that the presentence report called for a three point

enhancement. J.A. at 772, 776. In fact, Johnson's written objection to

the presentence report refers to the "three-point upward adjustment,"

and the "Addendum to the Presentence Report" correctly cites

U.S.S.G. § 3B1.1(b). J.A. at 814, 817.

Bruce's argument that he was not an "organizer or leader" of the

criminal activity under U.S.S.G. § 3B1.1(a) is particularly far-fetched.

Considerable trial testimony established that Bruce was the leader of

an extensive organization that made weekly trips to the Washington,

D.C., area to obtain cocaine and cocaine base. See, e.g., 678-82. For

example, Tracy Johnson testified that Bruce employed her as a runner

and that Bruce delivered crack cocaine to Jeffrey Johnson and

directed him to resell it. J.A. at 595, 598. Additionally, Bruce directed

security efforts, including strip searches and the posting of lookouts.

See, e.g., J.A. at 433, 488, 657-58, 761.

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IV.

Johnson and Bruce challenge the sufficiency of the evidence for the

jury's verdict on the conspiracy and substantive drug distribution

counts. However, a rational trier of fact could easily find Johnson and

Bruce guilty beyond a reasonable doubt on these charges. The conspiracy charge was proven by, among other things, the cooking of

cocaine in Helen Harrison's kitchen. Johnson cooked powder cocaine

into crack while Bruce, as discussed above, sat at the kitchen table

surrounded by bags of cocaine and crack cocaine. J.A. at 477-82. This

is further supported by the evidence, discussed above, regarding Johnson's role as a "manager or supervisor" in the drug-distribution organization and Bruce's role as its "organizer or leader." Appellants' only

argument regarding the sufficiency of the evidence for the substantive

drug distribution convictions is that the testimony of Lingenfelter and

Tracy Johnson was inherently unreliable. However,"[t]he credibility

of witnesses is a matter solely within the provence of the jury, and is

not reviewable by this court." Pigford v. United States, 518 F.2d 831,

836 (4th Cir. 1975).

V.

Bruce also challenges his 18 U.S.C. § 924(c) conviction, arguing

that there was insufficient evidence to prove either that he "use[d] or

carrie[d]" a firearm or that he did so "during and in relation to" a drug

trafficking crime. The § 924(c) conviction arose from a videotaped

incident in which Bruce offered to exchange drugs and money for a

machine-gun. Confidential informant David L. Hines testified that he

met Bruce in a hotel room, where Bruce searched the room, covered

the smoke detector, and strip searched Hines. J.A. at 431-33. In the

course of negotiating with Hines regarding the amount of money and

drugs he would give for the gun, Bruce picked up and examined the

M-16 using a bedsheet. J.A. at 433-34. Bruce and Hines then moved

out to the parking lot, where Bruce showed Hines cocaine and crack

cocaine together with a Tech-9 firearm in his car. J.A. at 436-42.

Bruce told Hines, "I've got the dope and I've got the cash, now, you

bring the gun out here and we can do a deal." J.A. at 436. Negotiations broke off without completion of the transaction.

Under our circuit's precedent, the exchange of drugs for a firearm

constitutes "use" of the firearm under § 924(c)(1). United States v.

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Harris, 39 F.3d 1262, 1269 (4th Cir. 1994); see also United States v.

Zuniga, 18 F.3d 1254, 1259 (5th Cir. 1994) (same). In a case not cited

by either Bruce or the United States, defendant Reginald Boone gave

Napoleon Yarn money and drugs in payment for Yarn to procure a

shotgun for Boone. Harris, 39 F.3d at 1269. We held that this

exchange or barter of cocaine for the mere "service" of obtaining a

shotgun was sufficient for § 924(c) purposes, id., and we subsequently held that the validity of Boone's conviction was unaffected

by the Supreme Court's decision in Bailey v. United States, 116 S. Ct.

501 (1995). United States v. Boone, No. 95-5055 (4th Cir., Aug. 16,

1996) (unpublished); see also United States v. Ulloa, 94 F.3d 949,

956 (5th Cir. 1996) (reaffirming Zuniga, supra, in light of Bailey).

The evidence supporting the § 924(c) conviction is considerably

stronger here than in Harris, because Bruce negotiated directly with

the possessor of the gun, rather than through a middle-man, and

because Bruce physically handled the gun for valuation purposes in

the course of negotiating over the drugs-for-gun exchange. According

to the Supreme Court, a gun can be "used" as"an item of barter" even

if the proposed drug transaction is not consummated. Smith v. United

States, 508 U.S. 223, 226, 229 (1993) (holding that the proposed

exchange of a gun for narcotics constitutes "use" under § 924(c)).

Therefore, under all of the circumstances, Bruce"used" the firearm

under § 924(c).

There can be no doubt that this use was "during and in relation to"

the predicate drug trafficking offenses of possession of cocaine with

intent to distribute and the ongoing conspiracy to possess with intent

to distribute crack cocaine. Given our circuit precedent, we have little

trouble deciding that Bruce "used" a firearm"during and in relation

to" a drug trafficking offense.

VI.

The district court clearly did not commit reversible error in questioning prosecution witness Benny Paul in front of the jury regarding

Paul's concerns about being jailed with Bruce. The district court's

alleged error occurred in response to Paul's testimony that he was

afraid of Bruce, J.A. at 557-61, and that Bruce made statements about

finding out who were the "snitches," J.A. at 561. The district court,

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however, merely asked Paul whether he wanted to be moved from the

Orange County Jail, and Paul responded "I would like to be moved."

J.A. at 561. Although Bruce did not object to this question during the

trial, he now argues on appeal that the district court's question constituted an impermissible comment on the evidence.

The essence of Bruce's challenge is that the court's question could

leave the jury with the impression that the court believed Paul's testimony. However, the court's concern for Paul's safety in no way indicates that the court considered Paul's testimony credible. Rather, the

court most likely was concerned that the mere fact that Paul testified

that he had seen Bruce with crack cocaine, had seen him involved in

a shoot-out, and had seen him with weapons on many occasions,

could jeopardize Paul's safety, regardless of whether the court found

any of Paul's testimony to be credible. Furthermore, there is no reason to believe that the court's question regarding whether Paul wished

to be transferred to another jail in any way prejudiced Bruce.

VII.

Bruce argues for the first time on appeal that the government

engaged in sentencing entrapment or sentencing manipulation by

allegedly introducing narcotics into the negotiations over the sale of

the gun to Bruce in order to obtain the 18 U.S.C.§ 924(c) conviction

and thereby enhance Bruce's sentence. However, drugs were not

injected into the deal merely for sentencing purposes, as Bruce

alleges: The drugs were at the core of the deal. Furthermore, Bruce's

predisposition toward the use of drugs for the procurement of the gun

is evidenced by Willie Scott's testimony that Bruce told him prior to

the meeting at the hotel that he intended to trade drugs or money for

the gun, J.A. at 689, and by the fact that Bruce brought drugs to the

motel and displayed them to the informant in the parking lot.

VIII.

Finally, appellants have failed to establish that the district court

abused its discretion by allowing the introduction of testimony

regarding drug involvement and firearms not mentioned in the indictment.

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Appellants first assert that evidence of a shoot-out on Kelly Street

was extrinsic evidence. This evidence, however, to which there was

no objection at trial, is clearly relevant to the conspiracy charge.

Benny Paul and Cory Dark testified that the shootout was part of a

competition between drug distribution organizations. J.A. at 531-34,

573-74. Furthermore, the conspiracy indictment alleged that

"[m]embers of the conspiracy were involved in several shootings during the course of the conspiracy, to settle disputes with rival crack

dealers, and to settle disputes within the conspiracy itself." J.A. at 24.

Second, Bruce asserts that Lingenfelter testified that he purchased

cocaine from Bruce prior to the start of the conspiracy. However, Lingenfelter's testimony regarding his purchases from Bruce on

"[s]everal occasions" prior to becoming an informant for the police in

no way establishes that these purchases were prior to the start of the

conspiracy. J.A. at 313.

Third, appellants object for the first time on appeal to the testimony

of Tracy Johnson regarding her drug involvement with Bruce during

the 1980s. However, the prosecution specifically asked Johnson about

her drug dealings with Bruce during 1993-1994, the time of the

charged conspiracy. J.A. at 594. Johnson's statement that she "knew

Rob back in the 80s" is neither evidence of prior acts nor prejudicial

to Bruce. J.A. at 595.

Fourth, appellants allege that trial testimony referred to firearms

that were used, carried and displayed during the conspiracy but that

were not specifically mentioned in the indictments. These guns,

though not themselves mentioned in the indictment, were part of the

conspiracy conduct charged in the indictment.

CONCLUSION

For the reasons stated herein, we affirm the judgment of the district

court.

AFFIRMED

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