United States Court of Appeals FOR THE EIGHTH CIRCUIT

__________ No. 97-1031

__________ United States of America, * * Plaintiff - Appellee, * * v. * * Ruffus Raglin Stelivan, * * Defendant - Appellant. *

__________ No. 97-1032

__________ United States of America, * * Plaintiff - Appellee, * * Appeals from the United States v. * District Court for the * Eastern District of Arkansas. Paul Anthony McGee, * * Defendant - Appellant. *The conspiracy statute under which Steli van pleaded guilty carries a maximum 1 term of sixty months imprisonment. See 18 U.S.C. § 371 (1994). -2- __________ No. 97-1034

__________ United States of America, * * Plaintiff - Appellee, * * v. * * Michael Dean Raglin, * * Defendant - Appellant. *

_____________ Submitted: April 17, 1997 Filed: September 8, 1997

_____________ Before R ICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, and FAGG , Circuit Judges.

_____________ FLOYD R. GIBSON, Circuit Judge. Appellant Ruffus Stelivan pleaded guilty toone count of conspiring to distribute cocaine and one count of conspiring to transport stolen property across a s tate line. See 18 U.S.C. § 371 (1994). The district court sentenced Stelivan to two con secutive sixtymonth terms of imprisonment. Stelivan challenges his sentence on appeal. 1-3-

A ju ry convicted appellants Michael Raglin and Paul McGee of aiding an d abetting the interstate transportatio n of stolen property. See 18 U.S.C. § 2314 (1994). Raglin and McGee challenge their convictions on appeal.

I. BACKGROUND In Fe bruary of 1995, Patricia Davis agreed to assist the Federal Bureau o f Investigation ("FBI") in its investigation of stolen four-w heel all-terrain vehicles ("fourwheelers ") in Arkansas. The FBI's efforts focused primarily on Stelivan. Davis' s cooperation was helpful because she had purchased numerous stolen four-wheeler s fromStel ivan in the past. During the investigation, the FBI monitored and recorde d several illicit tra

nsactions between Stelivan and Davis. On four separate occasions in early October, Stelivan sold cocaine and crack cocaine to Davis. On Octob er 25, 1995, Stelivan sold five stolen four-wheelers to Davis. Stelivan transported the vehicles from Arkansas to Oklahoma with the help of Raglin and McGee. Stelivan believed Davis wanted to sell the vehicles in Oklahoma b ecause she already had a potential buyer and it would be safer to sell the vehicles in Oklahoma rather than in the area from whic h they were stolen. On October 25, Raglin, McGee, and Davis traveled from Arkansas to Oklahoma in a car borrowed from Raglin's girlfriend. Stelivan followed th e threesome in a U-Haul truck loaded with the stolen four-wheelers. When the grou p reached Oklahoma, Raglin and Stelivan attempted to start the four-wheelers, to ensure that they were sale-worthy . McGee and Davis stood watch. An FBI agent arrived on the scene posing as Davis's "buyer." Davis gave Stelivan partial payment for the fourwheelers. Steli van, Raglin, and McGee drove back to Arkansas, while Davis and the "buyer" remained behind with the U-Haul and stolen vehicles. Stelivan pleaded guilty to one count of conspiracy to distribute cocaine and one count of interstate transportation of stolen property. The district court sentence d Stelivanto two consecutive sixty-month terms of imprisonment. Stelivan challenges his sentence claiming that the district court committed error when it applied theThe HONORABLE SUSAN WEBBER WRIGHT, United States Distr ict Judge 2 fo r the Eastern District of Arkansas, imposed Stelivan's sentence and presided ove r Raglin and McGee's trial. -4- Sent encing Guidelines Manual's career offender guideline to his sentence. He als o con tends that the crack cocaine versus powder cocaine sentencing ratio i s unconstitutional. We affirm Stelivan's sentence.

A jury convicted Raglin and McGee of aiding and abetting the interstat e transportation of stolen property. On app eal, Raglin and McGee argue that the district court abused its discretion when it improperly admitted hearsay testimony an d committed error when it deni ed their motions for acquittal. Raglin additionally claims that th e government's use of leading questions prejudiced his trial. Because w e conclude that the district court did not commit error, we affirm. 2

II. DISCUSSION

A. Stelivan's arguments

At Stelivan's s entencing, the district court applied the career offender guideline after determining that he committed an offense involving a controlled substance. See U.S. Sentencing Guidelines Manual § 4B1.1 (1995). Stelivan claims that the district court shoul d not have applied the career offender guideline because 18 U.S.C. § 371, the statute under which he pleaded guilty, is a conspiracy offense rather than a controll ed substance offense. Stelivan pleaded guilty to conspiring to distribut e cocaine. Under the sentencing guidelines, the term "controlled substance offense " includes " the offenses of aiding and abetting, conspiring, and attempting to commi t such of fenses." U.S. Sentencing Guidelines Manual § 4B1.2, application note 1 (1995); see also United States v. Mendo za-Figueroa , 65 F.3d 691, 694 (8th Cir. 1995) (en banc) (holding that Sentencing Commission's decision to include conspiracies toWe note that even had the district court committed error in applying the career 3 offen der guideline to Stelivan, we would nonetheless affirm the sentence because , under the lower crimin al history category, Stelivan still would have been sentenced to the maximum term of 120 months for two counts of violating 18 U.S.C. § 371. -5- comm it controlled substance offenses under career offender guideline was withi n statutory authority), cert. denied , 116 S. Ct. 939 (1996). Therefore, the district court pr operly determined that Stelivan should be sentenced as a career offender. Se e 3 Mendoza-Figueroa , 65 F.3d at 694. We also reje ct Stelivan's contention that the crack cocain e versus powder cocaine sentencing ratio is unconstitutional because thi s ar gument is foreclosed by opinions of this court. See , e.g. , United States v. Jackson , 67 F.3d 1359, 1367 (8th Cir.1995), cert. denied , 116 S . Ct. 1684 (1996); United States v. Clary , 34 F.3d 709, 710-14 (8th Cir.1994), cert. denied , 513 U.S. 1182 (1995).

B. Raglin's and McGee's arguments During Raglin and McGee's trial, Davis testified extensivelyabout conversations she had with Stelivan regarding the October 1995 four-whe eler transaction. Davis also te stifiedabout conversations she had with Raglin and McGee during their drive t o Ok lahoma. McGee contends that the district court should not have allowed Davis' s testimony regarding statements by Stelivan and Raglin because the Government did not establish McGee's participation in a conspiracy by a preponderance of evidence

. McGee the refore reasons that the statements were inadmissible as hearsay. Ragli n raises the same argument regarding statements by Stelivan and McGee. "A coconspirator's out-of-court statement is admissible against a defendant if the government establishes: (1) [t]hat a conspiracy existed; (2) that the defendant and the declara nt were members of the conspiracy; and (3) that the declaration was mad e during th e course and in furtherance of the conspiracy." United States v. Raymond , 793 F.2d 92 8, 930 (8th Cir. 1986) (quotation and citation omitted). The Government must demonstrate the conspiracy by a preponderance of the evidence and "may meet-6-

its burden using the disputed statements themselves." United States v. Carper , 94 2 F.2d 1298, 1301 (8th Cir.), cert. denied , 502 U.S. 993 (1991). The following evidence established McGee's participation in the conspiracy by a preponderance of evidence: (1) Stelivan t estified that, prior to the trip, he told McGee he was going to transpor t vehicles to Oklahoma; (2) McGee agreed to accompany Ste livan and Davis on the trip; (3) McGee called Stelivan to tell him where to find the keys to the U-Haul; (4) Davis testified that Stelivan told her that McGe e would be going with them to Oklahoma; (5) phot ographic evidence showed McGee and Raglin picking up Davis to drive her t o Oklahoma; (6) during th e trip to Oklahoma, McGee asked Davis if she had a need for any stolen John Deere lawnmowers; and (7) photo graphic and video evidence showed McGee's presence in Arkansas and Oklahoma during the interstate t ransportation of the stolen property. Similar evidence established Raglin's part icipation in the conspiracy: (1) Raglin borrowe d his girlfriend's car to drive Davis to Oklahoma; (2) photographic and video evidence showed Raglin's presence in Arkansas and Oklahoma during the commission of the c rime; (3) upon arrival in Oklahoma, Raglin helped Stelivan get the four

wheelers started; (4) Stelivan told Davis ahead of time that Raglin and McGee would dri ve her to Oklahoma; (5) Davis testified that, during the drive to Oklahoma, Raglin i nformed her that he was very tired because he had been up since 2:30 a.m. "getting" the four-wheelers; (6) Raglin and McGee picked Davis up to drive her to Oklahoma; (7) Raglin told Davis he was glad to be going on the trip because he had not worked in some time and needed the money; and (9) Raglin told Davis that he had rented the U-Haul for the trip and boug ht a lock for the U-Haul. After reviewing the evidence in the recor d, we conclude the Government established that McGee and Ragli n participate d in a conspiracy to transport stolen property across state lines by a pr eponderance of the evidence. Therefore, the district court properly admitted th e testimony in question as nonhearsay. See Fed. R. Evid. 801(d)(2)(E).-7-

McGee and Raglin further argue that the district court committed error when it rejected their motions for judgment of acquittal. Specifically, both ap pellants claim that the Government did not prove they had knowledge that the four-wheelers were stolen. When reviewing the sufficiency of th e evidence, we will view the evidence in the light most favor able to the Government and will give the Government the benefit of al l inferences that may logically be drawn from such evidence. See United St ates v. Jones , 16 F.3d 275, 277-78 (8th Cir. 1994). "We must susta in the verdict if it is supported by substantial evidence, and may only reverse if we find that a reasonable jury could not have found the defendant guilty beyond a reasonable doubt." Id. (citations omitted). After reviewing the evidence produced at trial, we conclude that a reasonable jur y could have determined that McGee and Raglin knew the four-wheelers were stolen

. Both app ellants claim that the only evidence of knowledge was presented in the form of accom plice testimony from unreliable witnesses (Stelivan and Davis). However , "[a]c complice testimony is sufficient to support a conviction when it is not incredible or insubstantial on its face ." United States v. Drews , 877 F.2d 10, 13 (8th Cir. 1989). Although the witness testimony was not without some inconsistencies, we canno t conclude t hat the testimony was incredible or insubstantial. Rather, the testimon y sufficiently allowed the jury to conclude that McGee and Raglin had knowledge that the four-wheelers were stolen. The government presented evidence sufficient to establish McGee's knowledge that the f our-wheelers were stolen. When asked whether McGee knew the vehicle s were stolen, S telivan responded: "He -- I -- yeah, I assume. I -- well, I'm sure he did because I -- I had told him that I was going to do it." Tr. Transcript I. at 61. During the trip, McGee asked Davis whether she could use some stolen John Deere mowers, indicating his knowledge that the four-wheelers were also stolen. From this evidence, a reasonable jury could have concluded that McGee knew the vehicles were stolen.

The Government also presented evidence sufficient to establish Raglin' s knowledge that the four-wheelers were stolen. Davis testified that Raglin stated heDuri ng the drive back to Arkansas with the FBI agent, Davis recorded he r 4 version of the events that transpired in the form of a written statement. Missing from Davis's statement is her claim that Raglin told her he was tired because he had been up since 2:30 a.m. getting the four-wheelers. Raglin asserts that Davis's testimony i s discredi ted because she testified regarding information that was not included in he r statement. We do not conclude that Davis's failure to include this information in her statement renders the evidence incredible or insubstantial on its face. The jury heard the evid ence put forth by the Government, and heard Raglin's attorney cross examine Davis about information she failed to record in her FBI statement. The jury the n weighed the evidence and presum ably made a credibility determination on the witness tes timony. This type of witness credibility determination is “virtually unreviewabl e on appeal.” See United States v. Adipietro , 983 F.2d 1468, 1472 (8th Cir. 1993 ) (quotations omitted). -8- rented the U-Haul under an alias so that law enforcement authori ties could not trace the truck back to him if authorities found the truck carrying stolen vehicles across the state line. Da vis also testified that during the drive to Oklahoma, Raglin told her he wa s tiredbecause he had been up since 2:30 a.m. getting the four-wheelers. Raglin also 4 told Davis he was glad to be going on the trip because he needed money. Based on this evidence, a reasona

ble jury could have concluded that Raglin knew the four-wheelers were stolen. Finally, Raglin contends that the district court abused its discretion when i t allowedthe Government's attorney to ask several leading questions. Raglin als o contends t hat his attorney had to make repeated objections in response to th e Governm ent's leading questions which amounted to extreme prejudice. Leadin g questions generally are not permitted during direct examination but may be used where "necessary to develop the witness' testimony." Fed. R. Evid. 611(c). The trial court is in the best position to evaluate the necessity of leading questions during direc t examination, see United States v. Nabors , 762 F.2d 642, 651 (8th Cir. 1985), and we will not reverse a trial court's decision to allow leading questions absent an abuse o f discretion, see United States v. Reddix , 106 F.3d 236, 238 (8th Cir. 1997). In this-9-

case, the d istrict court allowed the prosecutor to ask leading questions of Steliva n because he was inarticulate and evasive. The district court judge had presided ove r Stelivan's guilty plea proceeding and was therefore familiar with his manner o f testifying. Having revi ewed the record, we do not believe the district court abused its discretion when it allowed the Government to ask leading questions of Stelivan.

Durin g re-direct examination of Davis, Raglin objected to four of th e Go vernment's questions as being leading in nature. The district court sustained three objections and overrule d one. After the Government asked the final leading question, Raglin's a ttorney requested a mistrial, arguing that Raglin was prejudiced by th e continual objections. Th e district court overruled the motion for a mistrial but offered
a s tern warning to the Government's attorney, cautioning that the leading question s couldnot continue. We cannot conclude the district court's handling of this matte r amounted to an abuse of discretion.

III. CONCLUSION Based on the reasons set forth in this opinion, we affirm Ste livan's sentence. We also affirm Raglin's and McGee's convictions.

A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.