UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5930

PAUL WILLIAM NURSE, a/k/a Pablo,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4384

VANESSA FREZER,

Defendant-Appellant.

Appeals from the United States District Court

for the District of South Carolina, at Columbia.

Joseph F. Anderson, Jr., District Judge.

(CR-95-90)

Submitted: September 2, 1997

Decided: October 24, 1997

Before MURNAGHAN, HAMILTON, and MICHAEL,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Robert E. Bogan, NELSON, MULLINS, RILEY & SCARBOROUGH, L.L.P., Columbia, South Carolina; Susan Z. Hitt, Assistant

Federal Public Defender, Columbia, South Carolina, for Appellants.

J. Rene Josey, United States Attorney, Scarlett A. Wilson, Assistant

United States Attorney, Columbia, South 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Unpublished opinions are not binding precedent in this circuit.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:

Paul Nurse appeals from his jury convictions and sentence for conspiracy to possess with intent to distribute and to distribute cocaine

and cocaine base, in violation of 21 U.S.C. § 841(a)(1) (1994), two

counts of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a), and possession of a stolen firearm, in violation of 18 U.S.C.A. § 922(g) (West Supp. 1997). Vanessa Frezer

appeals from her jury convictions and sentence for possession with

intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a),

and possession of a firearm by an alien, in violation of 18 U.S.C.A.

§ 922(g).1 In this consolidated appeal, Appellants' formal brief raises

four issues. In addition, Nurse has filed a pro se supplemental brief

raising numerous additional claims. Because we find that none of

these claims has merit, we affirm Appellants' convictions and sentences.

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1 Both Nurse and Frezer were also convicted of using or carrying a firearm in connection with a drug trafficking offense, in violation of 18

U.S.C.A. § 924(c) (West Supp. 1997). These convictions were vacated

by the district court under Bailey v. United States, ___ U.S. ___, 64

U.S.L.W. 4039 (U.S. Dec. 6, 1995) (Nos. 94-7448/7442).

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I.

Since at least 1991, Dexter Pendergrass distributed cocaine in

Chester, South Carolina, and West Virginia, using drugs purchased

initially from sources in Charlotte, North Carolina, and later from

New York City. After deciding to obtain a different source of drugs,

Pendergrass was introduced to Rodney Wade and Nurse by their

mutual friend, Robert Cunningham. At their first meeting, Wade and

Nurse "fronted" Pendergrass an ounce of cocaine for which he was to

pay $1300. Later that night, Pendergrass paid $600, with the remainder to be paid the following day.

On March 6, 1995, Pendergrass met with Nurse and a man Nurse

identified as his brother. At that meeting Pendergrass paid the remaining $700, purchased an ounce of cocaine for $1100, and was fronted

two ounces of cocaine base by Nurse.

The following day, Pendergrass was arrested, and he agreed to

cooperate with the police by contacting the source of his cocaine.

Pendergrass made recorded calls to Wade's pager and to Cunningham. Pendergrass told Cunningham and Nurse that he had to throw

away the cocaine that Nurse and Nurse's brother had fronted him on

March 6. Pendergrass did this so that Nurse and Cunningham would

not hear of his arrest and subsequent cooperation. Pendergrass testified that, when he told Nurse that the cocaine was lost and he had no

money, Nurse became very angry and threatened him with a gun.

Nevertheless, Pendergrass, Wade, Nurse, and Cunningham negotiated a quarter kilogram deal. Pendergrass convinced Nurse that his

friend, actually government agent Rodney Blacknall, was going to

pay Nurse for the lost cocaine and buy an additional nine ounces of

cocaine base. On March 13, Pendergrass, Cunningham, and Blacknall

drove from Chester, South Carolina, to a McDonald's restaurant in

Columbia, South Carolina, to meet with Nurse. Government agents

conducted audio and visual surveillance of the McDonald's parking

lot, and Blacknall wore a wire.

After a brief conversation, Nurse and Cunningham drove away,

leaving Pendergrass and Blacknall at McDonald's. Nurse drove Cunningham to a residence located near Williams Brice stadium. Nurse

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told Cunningham to get into a different car, a blue Chevrolet, parked

in the residence's driveway. Vanessa Frezer was seated in the front

passenger seat of the vehicle.

After directing Frezer to get into the back seat and Cunningham to

sit in the front passenger seat, Nurse drove back to a parking lot adjacent to McDonald's. Cunningham testified that Nurse instructed

Frezer to "reach me that," whereupon Frezer pulled down the top part

of the back seat and handed Nurse a bag containing cookies of

cocaine base. Cunningham testified that he saw a nine millimeter gun

in the secret compartment. Once Frezer handed Nurse the cookies,

Nurse counted out eight of them and gave them to Cunningham.

Nurse then drove the car into the McDonald's parking lot, and

Cunningham entered McDonald's to tell Pendergrass and Blacknall

that he had the drugs. Pendergrass and Blacknall went to Nurse's

vehicle where Blacknall paid Nurse. Pendergrass, Cunningham, and

Blacknall then returned to their vehicle, where Cunnigham produced

the drugs. At that moment, the police moved in to make the arrests.

The Chevrolet was subsequently searched and a firearm was found

in a secret compartment. A bag of cocaine base was found on the

ground under the car. The total weight of the cocaine base recovered

on March 13 was 311.93 grams.

Nurse, Frezer, Cunningham, and Wade were charged in a seven

count superseding indictment.2 Nurse and Frezer's trial lasted for two

weeks. The jury returned guilty verdicts on multiple counts as to each

Defendant. Frezer was sentenced to 151 months imprisonment, followed by five years supervised release. Nurse was sentenced to 293

months imprisonment, followed by a term of five years supervised

release. Both Nurse and Frezer challenge their convictions and sentences in this consolidated appeal.

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2 Cunningham tendered his guilty plea prior to trial and testified for the

Government. Wade entered his guilty plea after approximately one week

of trial testimony.

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II.

During voir dire, the Government used six of its seven peremptory

strikes against African Americans. Nurse and Frezer, who are both

black, challenged two of the Government's strikes at trial alleging

that they were based on race in violation of Batson v. Kentucky, 476

U.S. 79 (1986). We do not find that the trial court clearly erred in

denying Appellants' Batson challenge.

The process for examining an objection to peremptory challenges

under Batson is as follows: (1) a defendant must make a prima facie

showing that the prosecutor has exercised his peremptory challenges

on the basis of race; (2) the burden then shifts to the prosecutor to

articulate a race-neutral reason for excusing the juror in question; and

(3) the trial court must determine whether the defendant has carried

the burden of proving purposeful discrimination. Hernandez v. New

York, 500 U.S. 352, 358-59 (1991). Here, the trial court found that a

prima facie showing of discrimination was made, and the burden then

shifted to the prosecutors to explain their basis for striking the jurors

in question.

The prosecutors stated that Gary Davis had been challenged

because he was casually dressed and "disheveled." The prosecutors

claimed that Angela Lynn was challenged because"she looked carefully and longingly" at Nurse, would not make eye contact with the

prosecution, and "seemed to identify" with another female venire person who had a shoplifting conviction.

In evaluating the reasons offered by a prosecutor for exercising a

peremptory challenge, the focus is on the facial validity of the explanation. Unless discriminatory intent is inherent in the prosecutor's

explanation, the reason advanced will be deemed to be race-neutral.

The explanation need not be "persuasive, or even plausible," so long

as it is neutral. Purkett v. Elem, 514 U.S. 765, 768 (1995). Moreover,

because the trial court is in the best position to observe the demeanor

and judge the credibility of the attorney who exercised the challenge,

great deference is accorded to a trial court's conclusion that the proffered reasons were not pretextual. Moore v. Keller Indus., 948 F.2d

199, 202 (5th Cir. 1991).

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Here, the prosecutors articulated non-racial reasons, those being

dress and eye contact. Dress and hairstyle have been recognized as

legitimate reasons for using peremptory strikes against potential

jurors. See United States v. Clemons, 941 F.2d 321, 325 (5th Cir.

1991). Further, lack of eye contact, body language, and apparent sympathy for the defendant are facially neutral explanations. See id.;

United States v. Roberts, 913 F.2d 211, 214-15 (5th Cir. 1990).

Because the prosecutors were able to provide race-neutral reasons

for each strike, the defendants were required to show purposeful discrimination by the Government. See Purkett, 514 U.S. at 768 (holding

that the burden of persuasion to demonstrate purposeful discrimination ultimately rests with the opponent of the strike). The trial court

conducted a "line-up" and viewed all the jurors in an attempt to compare Davis' appearance to the other jurors. The trial court also placed

one prosecutor under oath to testify and be subjected to crossexamination regarding the look he noticed Lynn giving Nurse and his

own inability to establish eye contact with Lynn. The trial court was

in a position to evaluate the appearance of the jurors and assess the

credibility of the prosecutors' explanations. The trial judge was specific in its findings regarding both these aspects.

Because the issues presented in a Batson challenge turn on evaluations of credibility, we review the district court's findings under a

clearly erroneous standard. United States v. Grandison, 885 F.2d 143,

146 (4th Cir. 1989). Giving proper deference to the trial court, we

conclude that Nurse and Frezer failed to show purposeful discrimination, and the district court's findings, which are supported by the

record, are not clearly erroneous.

III.

In his formal brief, Nurse challenges the denial of his motion for

acquittal regarding his conviction for possession of a stolen firearm.

In his pro se supplemental brief, he asserts that insufficient evidence

supported his convictions for conspiracy and possession with intent

to distribute cocaine base on March 13.3 We review a denial of a

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3 Nurse was convicted of distributing cocaine base on March 6, 1995,

and possessing with intent to distribute cocaine base on March 13, 1995.

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motion for acquittal under a sufficiency of evidence standard. Fed. R.

Crim. P. 29; see United States v. Brooks, 957 F.2d 1138, 1147 (4th

Cir. 1992). In Glasser v. United States, the Supreme Court explained

that a jury verdict "must be sustained if there is substantial evidence,

taking the view most favorable to the Government, to support it." 315

U.S. 60, 80 (1942). Further, we assess the evidence in the light most

favorable to the Government. United States v. Burgos, 94 F.3d 849,

857 (4th Cir. 1996), cert. denied, #6D6D 6D# U.S. ___, 65 U.S.L.W. 3586

(U.S. Feb. 24, 1997) (No. 96-6868).

First, Nurse contends that there was no evidence that he knew the

firearm was in the Chevrolet. The record, however, belies this assertion. Cunningham testified that, shortly after their arrests, Nurse told

him that the gun could not be traced to Nurse, because he bought it

from someone who had stolen it from a gun store in Georgia. Cunningham also testified that Nurse told him he would lie, if questioned,

and say that the gun was already in the car when he rented it. This

evidence, if believed by the jury, was sufficient to show possession

of the firearm by Nurse.4

Next, Nurse asserts that insufficient evidence supported his convictions for conspiracy and possession with intent to distribute. Viewed

in the light most favorable to the Government, the evidence at trial

clearly showed that Nurse agreed with Wade and Cunningham to distribute cocaine base to Pendergrass. In addition, the evidence revealed

that Nurse entered into an agreement with Frezer, Cunningham and

Pendergrass to sell cocaine base to Blacknall on March 13. Blacknall

testified that, on March 13, he paid Nurse for the cocaine base and

received the drugs from Cunningham, who testified that he received

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4 Because the evidence was sufficient to prove possession of the firearm beyond a reasonable doubt, it was clearly sufficient to support

Nurse's sentence enhancement under U.S. Sentencing Guidelines Manual § 2D1.1 (1995). This adjustment applies when a weapon is "present,

unless it is clearly improbable that the weapon was connected with the

offense." USSG § 2D1.1(b)(1), comment. (n.3). Because, based on the

record, the district court's determination that the firearm was present so

as to justify an enhancement was not clearly erroneous, see United States

v. Apple, 915 F.2d 899, 914 (4th Cir. 1990) (standard of review), we

affirm the enhancement.

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them from Nurse. The police recovered over 311 grams of cocaine

base from the crime scene. We hold that, in construing this evidence

in the light most favorable to the Government and drawing all reasonable inferences therefrom, a rational jury could easily have found

Nurse guilty of conspiracy to possess with intent to distribute cocaine

base and possession with intent to distribute cocaine base.

IV.

Nurse next contends that the district court erred by enhancing his

sentence under U.S. Sentencing Guidelines Manual§ 3C1.1 (1995)

for obstruction of justice. Cunningham testified at Nurse's sentencing

hearing that Nurse attempted to bribe him by offering him $25,000 to

testify that Nurse and Frezer had nothing to do with drug trafficking.

Cunningham was subjected to cross-examination by Nurse's counsel.

Nurse asserts that Cunningham's uncorroborated testimony was insufficient to prove obstruction of justice.

The Government must prove the factual basis for an enhancement

by a preponderance of the evidence. Furthermore, when, as here, the

issue is primarily a factual determination, we reverse only if the decision was clearly erroneous. See United States v. Daughtrey, 874 F.2d

213, 217 (4th Cir. 1989). Finally, the weight given an accomplice's

testimony is a decision strictly within the province of the district

court. See United States v. Thomas, 93 F.3d 479, 489 (8th Cir. 1996)

(finding of perjury where defendant's testimony contradicted accomplice's testimony not clearly erroneous). Given Cunningham's testimony and the fact that Nurse offered no contradictory evidence,5 we

find that the Government met its burden of proof. See United States

v. Riley, 991 F.2d 120, 125-26 (4th Cir. 1993).

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5 Contrary to Nurse's assertion, we find that the district court did not

improperly shift the burden of proof to Nurse. When the district court

noted that Nurse did not deny the obstructionist conduct, it was simply

commenting on the evidence before it. As discussed above, Cunningham's testimony, if believed by the district court, was sufficient to support the enhancement, and Nurse failed to contradict that testimony.

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V.

Frezer contends that insufficient evidence was introduced to support her convictions for possession with intent to distribute cocaine

base and possession of a firearm by an alien. She asserts that the prosecution failed to present sufficient evidence to show possession of

either the drugs or the firearm. Frezer's argument concerning the

drugs is easily dispensed with. The evidence showed that Frezer was

waiting for Nurse's arrival. Once Nurse, Cunningham, and Frezer

were in the car, Nurse asked Frezer to "reach me that." Frezer, without any further clarification, knew to open the backseat secret compartment which contained the cocaine base and the gun. Frezer than

took the cocaine base from the compartment and handed it to Nurse

to complete the transaction. From this evidence, a reasonable jury

could find that Frezer actually possessed cocaine base and handed it

to Nurse with the expectation and understanding that he was going to

sell it.

Regarding the firearm, mere presence as a passenger in a car from

which the police recover contraband or weapons does not establish

possession. See United States v. Blue, 957 F.2d 106, 108 (4th Cir.

1992). Testimony that the defendant removed something from the

spot where the police later found the weapon can support a finding

of possession, however. See United States v. Flenoid, 718 F.2d 867,

868 (8th Cir. 1983). In this instance, Frezer had dominion and control

over the firearm, because she had control over and used the secret

compartment and, in fact, she was alone in the car for a substantial

period of time. See United States v. Bell, 954 F.2d 232, 235-36 (4th

Cir. 1992), overruled on other grounds, United States v. Burgos, 94

F.3d 849 (4th Cir. 1996); United States v. Eldridge, 984 F.2d 943, 946

(8th Cir. 1993). In addition, Cunningham testified that once the secret

compartment was opened, the firearm was in plain view. Accordingly,

there was sufficient evidence to support Frezer's conviction.

VI.

Frezer also argues that she was entitled to a four-level reduction in

her offense level for her minimal role in the offense under USSG

§ 3B1.2(a). At sentencing, the district court granted Frezer a two-level

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reduction in her offense level for her minor role in the offense under

USSG § 3B1.2(b), but denied her a further downward adjustment.

Section 3B1.2 enables a court to reduce a defendant's offense level

by four levels if he or she was a minimal participant in criminal activity, by two levels if he or she was a minor participant in criminal

activity, or by three levels if his or her participation was less than

minor but more than minimal. A defendant must show by a preponderance of the evidence that he or she is entitled to the downward

adjustment he or she seeks. United States v. Gordon, 895 F.2d 932,

935 (4th Cir. 1990). On appeal, we will not disturb a district court's

finding as to a defendant's role in the offense unless that finding is

clearly erroneous. Daughtrey, 874 F.2d at 218.

Frezer had dominion and control over approximately 311.93 grams

of cocaine base, worth up to $9,000. She was directly involved in seeing that these drugs reached their intended buyer. In short, Frezer

failed to show by a preponderance of the evidence that she was entitled to a downward adjustment of her sentence for minimal participation. See United States v. Garcia, 920 F.2d 153, 155-56 (2d Cir. 1990)

(departure denied where defendant was entrusted with and delivered

large amount of cocaine).

VII.

Nurse contends that the jury was improperly instructed after Wade

pled guilty. According to Nurse, the district court informed the jury

that Wade had been "removed" from the case, that the jury should not

speculate on the reason, and that the jury should judge the guilt or

innocence of the remaining defendants solely on the evidence.6 Nurse

asserts that the jury should have been informed that Wade pled guilty.

First, it is hard to imagine how disclosure of Wade's guilty plea

could have aided Nurse. The testimony at trial showed that Wade and

Nurse were together involved in drug dealing. Therefore, Wade's plea

would tend to implicate Nurse. Next, any negative inference from the

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6 The joint appendix does not include the instructions. Therefore, we

have assumed, for purposes of argument, that Nurse correctly describes

the instructions.

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court's explanation regarding Wade was foreclosed by the court's

clear instructions to the jurors that they should not speculate or consider the reason for Wade's removal. Therefore, we find no prejudice

from the court's instructions. See United States v. Sockwell, 699 F.2d

213, 216 (5th Cir. 1983).

VIII.

Finally, Nurse asserts that the Government participated in a conspiracy designed to convince drug dealers to falsely testify at his trial.

He seeks access to transcripts of the grand jury proceeding in order

to support his contentions. Nurse's allegations are broad and conclusory. He presents no evidence of prosecutorial misconduct nor does

he indicate specific facts that are allegedly supported by the transcript. Finally, Cunningham and Pendergrass' backgrounds were

explored at trial, and the jury was well aware that they were both testifying under agreement with the Government. Because Nurse has not

shown a specific need for the transcripts, we will not permit a "fishing

expedition." Nurse's motion for production of transcripts is denied.

See Fed. R. Crim. P. 6(e); see also Douglas Oil Co. v. Petrol Stops

NW, 441 U.S. 211, 223 (1979) (disclosure appropriate only where

need for transcripts outweighs public interest in secrecy).

IX.

Accordingly, for the reasons stated, we affirm Appellants' 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 the decisional process.

AFFIRMED

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