UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4281

CHUNGA HAKI MATATA, a/k/a K-9,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Shelby.

Lacy H. Thornburg, District Judge.

(CR-94-44)

Submitted: April 30, 1998

Decided: May 27, 1998

Before MURNAGHAN, NIEMEYER, and MOTZ,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Roy H. Patton, Jr., KILLIAN, KERSTEN & PATTON, P.A.,

Waynesville, North Carolina, for Appellant. Mark T. Calloway,

United States Attorney, Jerry W. Miller, Assistant United States

Attorney, Asheville, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Chunga Haki Matata appeals his conviction and sentence for five

counts of possession with intent to distribute cocaine base in violation

of 21 U.S.C. § 841(a)(1) (1994), and one count of being a felon in

possession of a firearm in violation of 18 U.S.C.§ 922(g)(1) (1994).

The district court sentenced Matata to a term of imprisonment of 360

months and five years of supervised release. Finding no error, we

affirm.

Matata was charged as part of complicated conspiracy to distribute

cocaine and cocaine base in the Rutherford County, North Carolina,

area in the early 1990's. Several government agencies investigated the

conspiracy. In 1993, Matata moved into the Rutherford County area

and began selling rocks of cocaine. Several Government witnesses

testified that Matata sold cocaine base to them, saw Matata in possession of cocaine base, or saw him cooking cocaine base. As part of the

investigation, law enforcement agents recruited Christopher Scott

Gossett, who had been arrested for possession of drugs, to participate

in the investigation. Gossett made numerous controlled buys of

cocaine base for the agents. On one occasion, Matata sold Gossett a

.25 caliber handgun. Matata does not dispute that, at the time of the

sale, he was a convicted felon.

At trial, Gossett testified that on two occasions his cousin, Jan Patrick Lynch, went with him to buy the cocaine base from Matata.

Lynch was unavailable to testify at trial. However, Gossett testified

that prior to the buy, agents searched Lynch in his presence, that

Lynch did not leave his presence throughout the transaction, and that

after the purchase of drugs, he turned the drugs over to Agent Petty.

Agent Petty testified that both Gossett and Lynch turned over the

drugs to him after the controlled buy.

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At the beginning of the trial, Matata's counsel objected to the composition of the jury. Matata is African-American. The panel consisted

of one African-American member. Defense counsel objected and

stated that it was a per se violation to have only one AfricanAmerican panel member; in the alternative, he asked that the court

challenge the array of jurors, or that he be allowed to investigate the

method of jury selection. The court denied the motion.

During trial, defense counsel informed the court that the Defendant

insisted that his counsel examine the testifying officers about a September 1993 arrest in South Carolina and a subsequent arrest and

search in Rutherford County, North Carolina. The Government

objected. The court required counsel to make a proffer of what evidence he expected to elicit. Counsel stated that whether the arrest and

search were legal would go to the officers' credibility. The court

denied the line of questioning.

The jury returned a verdict convicting Matata of all but count one

of the indictment, the conspiracy charge. The jury could not reach a

verdict on count one and the court declared a mistrial on that count.

The Government dismissed count one. Matata filed a motion after discharge of the jury for acquittal on the remaining counts. The court

denied the motion.

Prior to sentencing, the probation office prepared a Presentence

Investigation Report (PSR), and Matata noted his objection to it. The

court held a sentencing hearing and considered Matata's objections.

The court attributed 284.79 grams of cocaine base to Matata, based

upon the testimony of several witnesses. The court then increased the

base offense level by two points for possession of a firearm. The court

also found that Matata was a career offender and established a criminal history category of VI. The court sentenced Matata to 360

months' imprisonment for three of the possession with intent to distribute counts and 240 months for the remaining possession with

intent to distribute charges, all terms to run concurrently.

First, Matata argues that the district court erred by refusing to allow

a challenge to the composition of the jury panel. By statute, a defendant may challenge the method by which jurors are selected, and, if

successful in showing that cognizable groups have been excluded, the

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defendant is entitled to a new trial. See 28 U.S.C. § 1867 (1994).

Under 28 U.S.C. § 1867(d), a defendant challenging the method by

which juries are selected is required to file with his motion a "sworn

statement of facts which, if true, would constitute a substantial failure

to comply with the provisions of this title." Failure to file such a

sworn statement requires that the motion be denied. See United States

v. Aguirre, 108 F.3d 1284, 1287 (10th Cir. 1997), cert. denied, ___

U.S. ___, 66 U.S.L.W. 3292 (U.S. Oct 20, 1997) (No. 96-1982).

Matata has not filed the statutorily required sworn allegation that

some identified discriminatory mechanism was employed in the district plan.

Matata argues that he could not comply with § 1867(d) because he

did not learn of the composition of the jury until the day voir dire

began. This type of hindrance is accounted for in the statute, however,

because the motion may be made within seven days after the defendant discovered the grounds for the substantial failure to comply with

the jury selection provisions. See 18 U.S.C.§ 1867(a). Even in his

brief on appeal, Matata does not put forth any evidence supporting his

claim of a violation of the jury selection procedures. In addition, this

court has approved the jury selection plan of the Western District of

North Carolina. See In Matter of the Review of the Amendment to the

Jury Selection Plan Submitted by the United States District Court for

the Western District of North Carolina, Order No. 85 (Order of Chief

Judge Ervin of the Fourth Circuit Court of Appeals, Mar. 23, 1992).

We therefore find this claim to be without merit.

Second, Matata argues that the district court erred in denying his

motion for judgment of acquittal. In his brief, Matata limits his argument to challenging counts 24 and 25 of the indictment, the charges

involving the cocaine base buys of Gossett and Lynch together.

Matata argues that it would be unreasonable to assume that Gossett

would be able to know what Lynch did with any drugs he took into

his possession, and therefore the quantity of drugs purchased by

Lynch and given to Agent Petty should not have been admitted.

Because Lynch did not testify, Gossett's and Petty's testimony was

the only evidence presented on counts 24 and 25.

The appellate court reviews the sufficiency of the evidence in the

light most favorable to the government. See Jackson v. Virginia, 443

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U.S. 307, 319 (1979). At trial, Gossett testified that on two occasions

Lynch went with him to purchase cocaine base from Matata, that both

he and Lynch were searched prior to the buy, that Lynch was in his

presence at all times, that he observed transactions with Matata and

Lynch, and that Lynch turned the drugs he purchased over to Agent

Petty. Petty testified that on the two occasions Lynch accompanied

Gossett, Lynch and Gossett each submitted packets of cocaine base

to him following their purchases; Petty also testified to the amounts

purchased by Lynch. We find that the convictions on these counts are

supported by sufficient evidence.

Next, Matata argues that the district court erred by refusing to

allow his counsel to cross-examine Petty and other investigating

agents about a September 1993 arrest in South Carolina. The arrest

and subsequent search of Matata's car were not the subject of the

criminal charges at issue in this case. During the trial, near the close

of the Government's case, Matata's counsel informed the court that

Matata wished to cross-examine the agents regarding the September

1993 incident, against the advice of counsel. During crossexamination of Petty, the Government objected to the line of questioning. Defense counsel stated that inquiry into the arrest and search

might show that Petty violated Matata's constitutional rights, and the

illegal conduct could be probative of his testimony. Both parties

agreed that the arrest did not have any other relevance to the trial and

that no evidence from that arrest and search was entered in the present

criminal case. The court did not allow further questioning on the matter because the information was not relevant to the issues at trial.

A trial court's evidentiary rulings are normally reviewed for an

abuse of discretion. See United States v. Fernandez, 913 F.2d 148,

154-55 (4th Cir. 1990). When a witness's credibility is in issue, specific instances of the witness's conduct may be inquired into on cross

examination only if probative of truthfulness or untruthfulness. See

Fed. R. Evid. 608(b). The trial court is vested with broad discretion

to control the mode of interrogation and the presentation of evidence.

See United States v. Gravely, 840 F.2d 1156, 1163 (4th Cir. 1988).

Except for evidence of conviction of a crime as provided in Rule 609,

extrinsic evidence of specific instances of conduct may not be used

to impeach a witness's credibility. See Fed. R. Evid. 608(b); United

States v. Bynum, 3 F.3d 769, 772 (4th Cir. 1993). The reason for the

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rule is to avoid holding a series of mini-trials on witness credibility

within the trial itself. See Bynum, 3 F.3d at 772. It was not an abuse

of discretion for the district court to deny Matata's attempt to impeach

the investigating agents' credibility based upon an unrelated series of

events. To delve into that subject would create exactly the type of

mini-trial to be avoided under Bynum. Such extrinsic conduct evidence is prohibited by Fed. R. Evid. 608(b).

Finally, Matata raises many issues with respect to sentencing. His

main assignment of error is that the PSR included incorrect drug

quantities and discussed counts in the indictment which had been dismissed, and therefore the PSR was prejudicial and resulted in an

unfair sentence in contradiction to the stated purposes of the Sentencing Commission. The district court's factual findings are reviewed

under the clearly erroneous standard, while its interpretation of guideline terms is reviewed de novo. See United States v. Daughtrey, 874

F.2d 213, 217 (4th Cir. 1989).

District courts may take "relevant conduct" into account in determining a defendant's sentence whether or not the defendant has been

convicted of the charges constituting the relevant conduct. See U.S.

Sentencing Guidelines Manual § 1B1.3 (1997); United States v.

Jones, 31 F.3d 1304, 1316 (4th Cir. 1994). The court must establish

the amount of drugs attributable to a defendant for sentencing purposes by a preponderance of the evidence. See United States v. Irvin,

2 F.3d 72, 75 (4th Cir. 1993). Whether the government has met its

burden of proof is a question of fact reviewed for clear error. See

Jones, 31 F.3d at 1316 (citing Daughtrey, 874 F.2d at 217). The

amount of cocaine base attributed to Matata was established by a preponderance of the evidence. Several witnesses testified to their participation in sales with Matata, their observation of cocaine base in

Matata's possession, and their observation of Matata cooking the

cocaine base.

Matata also attacks his sentence because only two of the other conspirators named in the indictment received higher sentences. A disparity in sentences between co-conspirators is not grounds to inquire into

the propriety of the sentence. See United States v. Foutz, 865 F.2d

617, 622 (4th Cir. 1989).

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Matata argues that his criminal record was improperly computed

and used against him to enhance his sentence under 18 U.S.C.

§ 924(e)(1) (1994). Matata does not specify how he believes his criminal record was incorrectly computed. Further, an enhancement under

§ 924(e)(1) is appropriate in his case. Under 18 U.S.C. § 922(g)(1),

it is unlawful for a person "who has been convicted [of a felony] in

any court" to possess a firearm or ammunition. Violators of

§ 922(g)(1) are subject to possible sentence enhancement based on

their criminal histories. Section 924(e)(1) provides: "In the case of a

person who violates section 922(g) of this title and has three previous

convictions by any court referred to in section 922(g)(1) of this title

for a violent felony or a serious drug offense, or both, such person

shall be . . . imprisoned not less than fifteen years . . . ." Matata was

previously convicted of at least three violent felonies and/or serious

drug offenses. Accordingly, the district court did not err in applying

§ 924(e)(1).

We therefore affirm the criminal judgment. We deny Matata's

motion for an injunction. 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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