UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5526

CARLTON MILTON PHILLIPS,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5527

WILLIE WALLS,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4256

DONALD EUGENE SMITH,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of North Carolina, at Statesville.

Richard L. Voorhees, District Judge.

(CR-93-17-V)

Submitted: April 7, 1998

Decided: May 7, 1998

Before ERVIN and MOTZ, Circuit Judges, and

BUTZNER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.

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COUNSEL

Richard A. Phillips, BENBOW & PHILLIPS, Statesville, North Carolina; David A. Minor, MINOR & BROWN, Statesville, North Carolina; Harold J. Bender, Charlotte, North Carolina, for Appellants.

Mark T. Calloway, United States Attorney, H. Thomas Church, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Defendants Carlton Milton Phillips, Willie Walls, and Donald

Eugene Smith were convicted by jury of conspiracy to possess with

intent to distribute cocaine base in violation of 21 U.S.C. § 846

(1994). The district court sentenced Phillips to 188 months' imprisonment, Walls to 262 months' imprisonment, and Smith to 324 months'

imprisonment. On appeal, the Defendants raise several issues challenging their convictions and sentences. Finding no error, we affirm.

I

The Defendants first argue that the district court erred by allowing

the Government to improperly bolster its case through the testimony

of Special Agent David Ramsey. Agent Ramsey received assistance

during the investigation from Michael Armstrong. Armstrong conspired with the Defendants and was involved in multiple drug transactions with them. During the direct examination of Agent Ramsey, the

prosecutor asked him why a number of individuals with whom

Michael Armstrong had been involved had not been indicted. Agent

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Ramsey replied that suspects are generally not indicted unless their

involvement is corroborated. Ramsey then went on to elaborate

regarding the type of investigative methods used to gather corroborative evidence. The defense objected to the line of questioning, and the

district court overruled the objection.

It is error for the government to vouch for the credibility of its witnesses, either through the prosecutor or through a government witness

who testifies as to the trustworthiness of other witnesses. See United

States v. Lewis, 10 F.3d 1086, 1089 (4th Cir. 1993) (citations omitted). It is not improper bolstering for the Government to explain its

investigative procedures or its relationship with the witnesses. See id.

In the instant case, there was no bolstering or vouching. The Government neither gave personal assurances that its witnesses were trustworthy nor stated that information not presented to the jury supported

the witnesses' testimony. The Government merely elicited testimony

from Agent Ramsey as to the methods of corroboration of information

leading to an indictment. Thus, the district court did not err in allowing the testimony.

II

Defendant Smith next alleges that the district court erred by refusing to instruct the jury that possession of cocaine base was a lesser

included offense of the conspiracy to possess cocaine base with the

intent to distribute charge. Smith argues that he was entitled to the

lesser included offense instruction because both the Government and

his defense counsel put on evidence to show that Smith was an abuser

of cocaine base. While there was evidence that Smith used drugs, the

Government also put on substantial evidence demonstrating that

Smith also sold cocaine and paid others to sell it for him. Regardless,

Smith was not entitled to an instruction on the lesser included offense

of simple possession of cocaine base.

A criminal offense includes a lesser offense where"the elements

of the lesser offense are a subset of the elements of the charged

offense." Schmuck v. United States, 489 U.S. 705, 716 (1989).

Because possession is not a necessary element of the conspiracy

charge, Smith was not entitled to an instruction on simple possession.

See 21 U.S.C. § 846 (1994); United States v. Horn, 946 F.2d 738, 744

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(10th Cir. 1991) ("possession, possession with intent to distribute, and

distribution are not lesser included offenses of conspiracy to commit

these same offenses"); United States v. Swingler, 758 F.2d 477, 499

(10th Cir. 1983); United States v. Brown, 604 F.2d 557, 560-61 (8th

Cir. 1979). The cases that Smith relies upon, United States v.

Thornton, 746 F.2d 39, 48 (D.C. Cir. 1984), and United States v.

Levy, 703 F.2d 791, 793 (4th Cir. 1983), are distinguishable from

Smith's situation because in those cases the defendant was charged

with possession with intent to distribute and not conspiracy.

III

Defendant Phillips argues that the district court erred when it

admitted statements made by him to Special Agent Ramsey. Phillips'

counsel filed a motion three days before trial to suppress the statements made by Phillips to Ramsey. The district court denied the

motion as untimely.

Motions to suppress evidence must be raised prior to trial. See Fed.

R. Crim. P. 12(b)(3). The district court may set a time for the making

of such pre-trial motions, and a party's failure to raise defenses or

objections pursuant to Rule 12(b) constitutes waiver of the issue. See

Fed. R. Crim. P. 12(f). In this case the arraignment order, dated January 4, 1994, directed that all pre-trial motions had to be filed within

fifteen days after the date of the arraignment order, or the date on

which counsel is appointed or makes a general appearance, whichever

is later. Counsel for Defendant Phillips was appointed on January 7,

1994. Counsel filed the motion to suppress the statements made by

Phillips to Agent Ramsey on June 9, 1995, three days before trial

began. The motion did not state any reason for non-compliance with

the deadline set out by the court, nor did it identify any prejudice arising from a waiver. Therefore, relief under Rule 12(f) was not available. See Fed. R. Crim. P. 12(f). Phillips does not address the

timeliness issue in his brief on appeal and argues only the merits of

the suppression motion. Because Phillips did not demonstrate cause

for non-compliance with district court's order setting the deadline to

file a suppression motion, we find that the district court did not abuse

its discretion in denying the motion.

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IV

The Defendants argue that in three instances the Government failed

to disclose evidence in violation of Brady v. Maryland, 373 U.S. 83,

87 (1963), and their due process rights. First they argue that the Government failed to disclose notes from a September 25, 1992, interview

between Investigator Craven of the North Carolina State Bureau of

Investigation and Elliot Phifer, a co-conspirator of the Defendants,

until the Government discovered the notes during trial and showed

them to defense counsel. Next the Defendants allege that the Government failed to disclose information regarding four interviews between

Agent Ramsey and Michael Armstrong that occurred on July 13, 14,

15, 1992, and December 9, 1992. Finally, the Defendants allege that

the Government violated their rights by losing a tape recorded conversation between Phillips and Armstrong.

The Defendants did not object at trial to the testimony of Phifer or

Ramsey regarding the interviews. Therefore, their challenge to the

admission of this testimony is reviewed for plain error. See Fed. R.

Crim. P. 52; United States v. Olano, 507 U.S. 725, 732-34 (1993).

First, the record reflects that the information regarding the September

1992 interview between Craven and Phifer was in the Government's

open file, a file which was available for the Defendants' review and

access. The material the prosecutor first produced at trial was rough

notes regarding the interview.* The full report of the interview was

in the file.

The transcript reflects that a summary of the Armstrong interviews

was also in the open file. Again, only Agent Ramsey's rough notes

of each interview were not in the file. The prosecutor clarified which

notes Agent Ramsey had and offered them to defense counsel.

Defense counsel said that he was satisfied with the material he had

and was able to cross-examine the witness.

_________________________________________________________________

*During the trial the prosecutor first said that he had not disclosed the

notes to defense counsel because he thought they were the rough notes,

but they were not, they were the full interview report. (JA 144-45). Later,

the prosecutor again examined the document and decided that they were

indeed the rough notes as he originally thought. (JA 147).

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The Defendants allege that if they had been made aware of the

rough notes earlier they might have been able to"hone" their crossexamination because they allege the statements were vague and contradictory. However, the open file contained all of the final reports of

the interviews to which the Defendants were entitled. Accordingly,

we find that there was not a violation of the Defendants' rights under

Brady or the Due Process Clause. Cf. United States v. Hinton, 719

F.2d 711, 721-22 (4th Cir. 1983) (holding that an agent's rough notes

of an interview need not be produced under the Jencks Act, 18 U.S.C.

§ 3500 (1994)).

Finally, the Defendants allege that the failure to preserve and produce the tape recording between Phillips and Armstrong at the Nash

County Courthouse on February 26, 1992, violated the Due Process

Clause. Agent Ramsey testified that the recording had been lost. The

Defendants allege that on the tape recording during his conversation

with Armstrong, Phillips denied that he sold crack.

The failure to preserve potentially useful evidence is only a denial

of due process if the defendant shows bad faith on the part of the

police. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988). A defendant's due process rights are not violated when evidence is inadvertently lost. See United States v. Sanders, 954 F.2d 227, 231 (4th Cir.

1992). The Defendants allege that because the Government was able

to locate a tape recording between Armstrong and Phillips that implicated Phillips, yet could not find the recording that allegedly exculpated Phillips, the loss involved more than inadvertence or

negligence, and the failure to preserve evidence of this type necessarily amounts to bad faith.

The Defendants, however, do not demonstrate anything more than

inadvertence. In addition, the Defendants do not demonstrate that

even assuming the tape recording existed, in light of the overwhelming evidence of their guilt, a reasonable probability existed that the

tape recording would have changed the result of the trial. See United

States v. Bagley, 473 U.S. 667, 682-83 (1985). We therefore find that

this claim is without merit.

V

All three Defendants allege that the district court erred in its finding of the amount of cocaine base reasonably foreseeable to them. In

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a drug offense, the defendant is accountable for all quantities of contraband with which he was directly involved, and in the case of a

jointly undertaken criminal activity, all quantities of contraband foreseeable to him within the scope of the criminal activity in which he

jointly participated. See U.S. Sentencing Guidelines Manual, § 1B1.3,

comment. (n.2) (1997); United States v. Gilliam , 987 F.2d 1009,

1012-13 (4th Cir. 1993). Proof of the quantity of cocaine reasonably

foreseeable to the defendant must be established by a preponderance

of the evidence. See United States v. McManus , 23 F.3d 878, 885 (4th

Cir. 1994). This court reviews the district court's foreseeability finding under the clearly erroneous standard. See United States v. Banks,

10 F.3d 1044, 1058 (4th Cir. 1993).

The defense's attack on the amount of cocaine base reasonably

foreseeable to Smith, Walls, and Phillips is based on its contention

that the Government was "something less than honest[ ]" in attributing the amount of cocaine reasonably foreseeable to co-conspirator

Michael Armstrong, because most of the cocaine in the conspiracy

came from Armstrong. The Defendants contend that because their

cocaine came from Armstrong, the court should not have attributed

more drugs to them than it attributed to Armstrong. However, Armstrong was given immunity for some of his conduct in exchange for

cooperating in the investigation. Moreover, disparity of sentencing

between co-conspirators is generally not an issue that may be raised

on appeal. See United States v. Goff, 907 F.2d 1441, 1447 (4th Cir.

1990) (collecting cases).

The Defendants also collectively argue that the district court erred

because it allegedly failed to make specific findings of fact with

respect to the amount attributable to each Defendant. The transcript

of the sentencing hearing reflects that the district court did make specific findings of fact with respect to each Defendant and that these

findings were supported by a preponderance of the evidence.

Smith argues that the amount attributed to him should be decreased

by the amount of drugs he obtained for his personal use. He relies

upon a Ninth Circuit case, United States v. Kipp , 10 F.3d 1463, 1465

(9th Cir. 1993), which states that drugs for personal use are not relevant to the crime of possession with intent to distribute because they

constitute a separate course of conduct not related to distribution.

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Smith was convicted of conspiracy to possess with intent to distribute.

Even if Kipp were binding authority in this circuit, which it is not, the

differences in the offenses of conviction render this case distinguishable from Kipp.

Further, the district court's findings regarding the amount of drugs

attributed to Smith as a part of the conspiracy was fully supported by

the evidence. Armstrong testified that in the summer of 1991 he

began to receive money from Smith to bring cocaine base to Mooresville, North Carolina, from Philadelphia. Armstrong testified that each

time he would return with four to four and one half ounces of cocaine

base, he would sell three to three and one half ounces for Smith, and

that Smith would sell the remaining crack himself. Armstrong testified that this occurred on a weekly basis until December 1991. Government witnesses Elliot Phifer, Kathy Walker, and Harold Gabriel

corroborated Armstrong's testimony and testified that each of them

had sold crack for Smith during the conspiracy. Based upon this testimony, the district court did not clearly err in attributing to Smith

between 500 grams and 1.5 kilograms of cocaine base.

Walls contends that the district court erred in calculating the

amount of cocaine base reasonably foreseeable to him because he

should have been found less culpable than Armstrong, and because

the district court did not state its factual findings. As discussed above,

we find that the district court did not clearly err in calculating the

amount of cocaine base reasonably foreseeable to Walls.

Finally, Phillips argues that the district court erred in calculating

the amount of cocaine base reasonably foreseeable to him because, in

addition to the two general arguments of the Defendants, the amount

attributed to him was established only by the testimony of Armstrong.

Phillips alleges that Armstrong's testimony was inconsistent and was

not credible, so Armstrong's testimony should not be used in calculating the amount. The jury found Armstrong's testimony credible. He

testified that in October 1991 he began receiving cocaine base from

his uncle, Defendant Phillips. Armstrong testified that between October and December 1991 he made approximately twelve trips to his

uncle and picked up four to four and one half ounces of cocaine base

each time. Elliot Phifer corroborated Armstrong's testimony and

stated that he made eight trips with Smith to pick up Armstrong at

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Phillips' house. He further testified that on at least two of these occasions he observed eight to ten ounces of cocaine base in his possession. Agent Ramsey testified that Phillips admitted to him that he had

done one two-ounce deal with Armstrong. Based upon this evidence,

we find that the district court did not clearly err in calculating the

amount of cocaine base reasonably foreseeable to Phillips.

VI

Finally, Smith argues that he should not have received an enhancement for being an organizer or leader in the conspiracy under USSG

§ 3B1.1(c). The determination that a defendant is an organizer or

leader in an offense is essentially a factual question reviewable for

clear error. See United States v. Harriott, 976 F.2d 198, 202 (4th Cir.

1992).

Elliot Phifer, Kathy Walker, Harold Gabriel, and Michael Armstrong all testified that they were selling cocaine for Smith during the

conspiracy. Phifer and Armstrong both testified that Smith furnished

the money to purchase the cocaine. Considering this evidence, the district court properly concluded that Smith was an organizer or leader,

so the enhancement was proper. Smith also argues that because Armstrong did not receive an enhancement as an organizer or leader,

Smith should not have received an enhancement either. As discussed

above, this argument is without merit.

Because all of the Defendants' claims are meritless, we affirm their

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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