UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4103

JOE LEWIS BLACKWELL, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the District of North Carolina, at Greensboro.

William L. Osteen, Sr., District Judge.

(CR-96-109)

Argued: April 9, 1998

Decided: June 26, 1998

Before WIDENER and LUTTIG, Circuit Judges, and DOUMAR,

Senior United States District Judge for the Eastern District of

Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Anthony Wayne Harrison, Sr., HARRISON, NORTH,

COOKE & LANDRETH, Greensboro, North Carolina, for Appellant.

Clifton Thomas Barrett, Assistant United States Attorney, WinstonSalem, North Carolina, for Appellee. ON BRIEF: Walter C. Holton,

Jr., United States Attorney, Winston-Salem, 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Unpublished opinions are not binding precedent in this circuit.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:

Defendant, Joe Blackwell, Jr., was indicted for conspiring with

Craig Fountain and others to distribute cocaine base"[f]rom prior to

March, 1992, up to and including the present, the exact dates to the

Grand Jurors unknown." J.A. at 7. Fountain testified at defendant's

trial about his drug deals with defendant from 1987 forward. He testified that he had known defendant all of his life, J.A. at 25, and that

he started selling cocaine powder for defendant in 1987 or 1988 when

Fountain was 15, J.A. at 25-30. Fountain also testified that he and

defendant began selling crack around 1989 and continued through

1991, J.A. at 30-31, when Fountain quit dealing to spend more time

with his girlfriend. Fountain (who was apparently just below defendant in the distribution chain) testified that he began dealing drugs

again with Mr. Blackwell "[a]round 1993" and continued from 1993

to 1994. J.A. at 32. After being released from prison in May 1995,

Fountain again resumed his drug activities with Blackwell. J.A. at 32-

34. A number of other witnesses also testified about their drug transactions with defendant. See Appellees' Brief at 5-7 (recounting this

testimony). The jury convicted defendant of conspiracy to distribute

cocaine base and the court sentenced defendant to 350 months in

prison.

Defendant contends on appeal that the district court abused its discretion by admitting Fountain's testimony about drug transactions that

occurred between him and the defendant in 1987 and 1988 and by

permitting government cross-examination of a witness that exceeded

the scope of direct examination. He also argues that the district court

clearly erred in determining the amount of drugs attributable to him

for sentencing purposes. Finding no error, we affirm defendant's conviction and sentence.

The district court did not abuse its discretion in admitting the testimony of defendant's co-conspirator, Fountain, about his drug deals

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with defendant from 1987 forward. The indictment specifically

charged that the conspiracy began "prior to March 1992," and thus

contemplated admission of some evidence of conspiratorial acts that

occurred prior to March 1992. More importantly, however, Fountain's

testimony about pre-1992 drug transactions with the defendant is not

404(b) "other acts" evidence, but rather is evidence intrinsic to the

charged conspiracy because it "completes the story" of the charged

crime by explaining how Fountain met the defendant and how their

drug-dealing relationship began and evolved.

In United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994), we

held that the trial court did not err by admitting evidence of drug

transactions that "involved different people and fell outside the

charged conspiracy period." Id. The transactions at issue had occurred

one to two years before the charged conspiracy. Id. The court

explained:

[The defendant's] argument erroneously assumes that all

evidence falling outside the charged conspiracy period necessarily involves a separate, unrelated offense subject to the

strictures of [Rule 404(b)]. It is well-established, however,

that the mere fact that the evidence involved activities

occurring before the charged time frame of the conspiracy

does not automatically transform that evidence into"other

crimes" evidence. Rather, evidence of uncharged conduct is

not considered "other crimes" evidence if it"arose out of the

same . . . series of transactions as the charged offense, . . .

or if it is necessary to complete the story of the crime (on)

trial."

Id. (citations omitted). The court held that the evidence of other drug

transactions provided context for the charged offense and "proved

[defendant's] participation in drug distribution activities," and was

thus not "other crimes" evidence under Rule 404(b). Id. at 886; see

also United States v. Chin, 83 F.3d 83, 88-89 (4th Cir. 1996); United

States v. McMillon, 14 F.3d 948, 954-55 (4th Cir. 1994) (testimony

by co-conspirators about defendant's drug dealing and drug deals

with the co-conspirators -- some of which predated the charged conspiracy by more than eight years -- was admissible under 404(b) to

lay the "groundwork" for the conspiracy and to explain "how the ille-

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gal relationship between participants in the crime developed") (citations omitted).

Similarly, Fountain's testimony in this case described the evolution

of his drug-dealing relationship with the defendant and thus laid the

foundation for, and "completed the story" of, the charged conspiracy.

Therefore, it was not "other acts" evidence subject to the strictures of

Rule 404(b).1 Moreover, even if Fountain's testimony about his pre1992 drug transactions with the defendant had been 404(b) evidence,

the district court -- in an abundance of caution-- gave the jury a limiting instruction about that testimony that was more than sufficient to

dispel any prejudice to defendant. J.A. at 27.

We also reject defendant's contention that the district court abused

its discretion by permitting government cross-examination of a witness that exceeded the scope of direct examination. The government

cross-examination of defense witness Lee Settle was permissible,

even though it exceeded the scope of direct examination, because it

was relevant to matters affecting the witness' credibility.

The defense called Settle to impeach the testimony of a government witness, Thomas Neal. Settle testified that, contrary to Neal's

testimony, Neal had participated in a drug-related beating. J.A. at

205-07. On cross-examination, the government asked Settle (over

objection) whether he had been involved in drug activity with the

defendant and to describe the nature of that involvement. J.A. at 207-

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1 The primary case relied on by defendant, United States v. Hernandez,

975 F.2d 1035 (4th Cir. 1992), addressed a very different set of facts. A

witness in Hernandez testified that six months prior to the acts alleged

in the indictment, he met the defendant at a clothing store, and she told

him she had a "special recipe for cooking crack" because "she used to do

that, sell that in New York." Id. at 1037. The court held that this evidence

was inadmissible under 404(b), primarily because it was offered to prove

intent in the charged conspiracy even though "[t]he testimony did not

establish anything about [the defendant's] conduct or mental state during

the course of the conspiracy alleged in the indictment." Id. at 1039. The

evidence in question in Hernandez was obviously not necessary to complete the story of the charged offense or to explain the evolution of the

relationship between the defendant and any of her co-conspirators.

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08. Settle described how he and the defendant "used to meet in the

pool room, you know, and just talk, hangout, shoot pool" and how he

sold defendant an ounce or a half ounce of cocaine on three occasions

and bought an ounce back from him on one or two occasions. J.A. at

208-09. This government cross-examination of Settle about his drug

transactions with the defendant was permissible because it went to

Settle's credibility: if he had a prior drug-dealing relationship with

defendant, his testimony might be biased. Federal Rule of Evidence

611(b) specifically allows cross-examination to exceed the scope of

direct when it is about matters affecting the credibility of the witness.

See id. ("Cross-examination should be limited to the subject matter of

the direct examination and matters affecting the credibility of the witness."). Indeed, the district court had the discretion to allow crossexamination that exceeded direct even if it was not relevant to the witness' credibility. See id. ("The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct

examination.").

In any event, even if the district court erred in allowing the government's cross-examination, Settle's testimony about a few drug transactions with defendant was harmless because six people had already

testified that they either received cocaine from the defendant or sold

cocaine to him during the charged conspiracy.2 See Appellee's Brief

at 4-6, 15.

Finally, the district court did not err in determining the amount of

drugs attributable to defendant for sentencing purposes. Defendant

argues only that the trial testimony relied upon by the district court

in determining the attributed amount of drugs was"unacceptably

vague in [its] description of the times and amounts of the controlled

substance involved," and was incredible because it was provided only

by witnesses who were testifying under plea bargains calling for "substantial assistance" and the different witnesses' testimony was contra-

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2 The testimony of Craig Fountain alone established a drug amount of

over two kilos, J.A. at 303-04, and that of Douglas McCain established

a drug amount of four kilos, J.A. at 305. Defendant was also in possession of cocaine at the time of his arrest. Moreover, the drug transactions

described by Settle apparently were not counted in computing the

amount of drugs attributable to the defendant for sentencing. J.A. at 305.

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dictory. Appellant's Brief at 12. Indeed, at the sentencing hearing,

defense counsel agreed with the district court that the drug amount

determination came down to a "question of credibility" and stipulated

that there was sufficient evidence in the trial transcript to support the

drug calculations in the pre-sentence report (PSR) if the court credited

that testimony. J.A. at 268.

The district court clearly rejected defendant's arguments about the

credibility of the government's witnesses and specifically found that

the trial testimony relied on in the PSR was credible:

I will find from having been involved in the trial, and having

listened to the evidence in this case, that the evidence found

by Mrs. Stafford [who prepared the pre-sentence report],

from the various persons named in the pre-sentence report,

does constitute credible evidence. And for that reason, the

Court will find that the calculation made by Mrs. Stafford

is supported by at least the preponderance of the evidence.

J.A. at 270. We will not second-guess this credibility determination

by the district court.

For the foregoing reasons, the judgment of the district court is

affirmed.

AFFIRMED

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