UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4919

ANTONIO GERARDO DOUGLAS,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4954

WILLIAM LEE JOHNSON,

Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CR-97-184-A)

Submitted: September 30, 1998

Decided: October 16, 1998

Before ERVIN, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Joseph N. Bowman, Alexandria, Virginia; Richard Carnell Baker,

LAW OFFICE OF RICHARD CARNELL BAKER, P.C., McLean,
Virginia, for Appellants. Helen F. Fahey, United States Attorney, W.

Neil Hammerstrom, Jr., Assistant United States Attorney, Alexandria,

Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:

In these consolidated appeals, Antonio G. Douglas and William

Lee Johnson appeal their convictions for conspiracy to distribute fifty

grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1)

& 846 (1994). Specifically, Douglas and Johnson contend that the

evidence was insufficient to sustain their convictions. Viewing the

evidence, and the inferences to be drawn therefrom, in the light most

favorable to the Government,1 we hold that a rational juror could have

found evidence sufficient to support the conspiracy convictions.

Accordingly, we affirm.

Between January 1995 and March 1996, members of a drug gang

known as the "5-5 Crew" purchased and sold various quantities of

crack cocaine at locations throughout Prince William County, Virginia. The Government called numerous witnesses, most of whom

were admitted drug dealers, who testified that Johnson regularly supplied members of the gang with distributable amounts of crack, and

that Douglas was a member of the "5-5 Crew" who regularly purchased and sold cocaine. We address, in turn, the evidence adduced

against Johnson and Douglas.

With regard to Johnson, six Government witnesses identified him

as a regular supplier of large amounts of crack cocaine. One of those

witnesses, Michael Wilkins, an admitted member of the "5-5 Crew,"

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1 See Evans v. United States, 504 U.S. 255, 257 (1992).

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testified that, in the late summer of 1996, he would purchase crack

cocaine from Johnson several times a week. On occasion, Douglas

would accompany Wilkins to these drug sales. Wilkins would contact

Johnson by calling Johnson's pager. To corroborate Wilkins' testimony, the Government introduced telephone toll records which

revealed that, within a three-month period, Wilkins placed approximately fifty-two calls from his cellular telephone to Johnson's pager.

Daniel McMahan also corroborated Wilkins' testimony. McMahan

stated that "[e]verybody used to page [Johnson] to get some `crack.'"2

He further testified that Johnson would supply Douglas with crack

cocaine, and that on several occasions, he purchased crack cocaine

from Johnson through Douglas.

In addition to Wilkins and McMahan, Government witnesses testified that they knew Johnson by his nickname, "Red Man." Moreover,

several independently established that Johnson drove a gray pickup

truck and identified photographs of locations where Johnson distributed crack cocaine.

With regard to Douglas, three Government witnesses testified that

they had personally observed Douglas selling cocaine on a regular

basis. An additional four witnesses testified that they had sold Douglas crack cocaine. Finally, the Government established that Douglas,

in the presence of three law enforcement agents, had confessed to purchasing and selling crack cocaine. This confession identified the individuals from whom Douglas purchased drugs, as well as the dates and

locations of these purchases.

The jury convicted Douglas and Johnson of conspiracy to distribute

crack cocaine. The district court sentenced them to 360 months and

292 months imprisonment, respectively. This appeal followed.

Douglas and Johnson contest the sufficiency of the evidence to

support their convictions. In reviewing the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact

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2 J.A. at 213.

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could have found the essential elements of the crime beyond a reasonable doubt."3 The reviewing court "may not overturn a substantially

supported verdict merely because it finds the verdict unpalatable or

determines that another, reasonable verdict would be preferable."4

Rather, "appellate reversal on grounds of insufficient evidence . . . [is]

confined to cases where the prosecution's failure is clear."5 Applying

these principles, we affirm Douglas' and Johnson's convictions.

First, Douglas and Johnson claim that, despite a year-long investigation into the drug gangs' activities, the evidence which the Government relied upon in seeking their convictions was insubstantial. Both

Douglas and Johnson note that investigators never recovered any

crack cocaine from them, that they never participated in "controlled

buys," and that there are no videotapes or audiotapes capturing their

participation in drug transactions.

While we agree with Douglas and Johnson that the Government's

evidence in this case was largely circumstantial, that is in no way fatal

to the Government's case. Rather, "a conspiracy generally is proved

by circumstantial evidence and the context in which the circumstantial evidence is adduced. . . . Indeed, a conspiracy may be proved

wholly by circumstantial evidence."6 Therefore, the fact that the Government did not produce videotapes, audiotapes, drug money, or other

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3 Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citation omitted).

4 United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (in banc),

cert. denied, ___ U.S. ___, 65 U.S.L.W. 3586 (U.S. Feb. 24, 1997) (No.

96-6868).

5 Burks v. United States, 437 U.S. 1, 17 (1978) (footnote omitted).

6 Burgos, 94 F.3d at 857-58 (citations omitted).

As we noted in Burgos, although circumstantial evidence can sufficiently support a conspiracy conviction, the Government must still prove

each element of the crime charged beyond a reasonable doubt. Id. Johnson, in his pro se supplemental brief, argues that the Government proved

only that he was a drug dealer, not that he was involved in a conspiracy

to distribute crack cocaine. We disagree. Our reading of the record leads

us to the conclusion that a wide-reaching conspiracy existed among the

members of the "5-5 Crew," and that by virtue of his numerous crack

cocaine sales to the gang members, Johnson participated in this conspiracy.

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tangible evidence does not necessarily result in a finding that a rational trier of fact could not have found Douglas and Johnson guilty of

the conspiracy charges. Accordingly, we decline to disturb their convictions on this ground.

Second, Douglas and Johnson attack the credibility of the Government's witnesses. They correctly note that most of the Government's

evidence consisted of testimony from convicted drug dealers, all of

whom had received sentences of at least ten years. They are also correct in noting that several of the Government's witnesses were alleged

coconspirators who pled guilty to the conspiracy charges at issue in

this case. However, Douglas and Johnson are incorrect in stating that

we should reverse their convictions because the Government "purchased the testimony of these witnesses"7 and that these witnesses

"were at the complete mercy of the government prosecutors."8

We have held that "determinations of credibility`are within the

sole province of the jury and are not susceptible to judicial review.'"9

Further, a conspiracy conviction may be predicated on even the

uncorroborated testimony of an accomplice.10 In the instant case, the

Government's witnesses were placed before the jury"with all their

foibles exposed -- their felony records, their drug use, [and] their

incentives to earn a sentence reduction."11 Ultimately, the jury was

responsible for assessing the credibility of these witnesses. Therefore,

we will not disturb the convictions on this ground.

Finally, Douglas contends that he never confessed to investigators

that he sold or purchased drugs. To support his argument, he attacks

the credibility of the two investigators who testified as to the confes-

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7 Appellant's Br. at 11.

8 Id. at 12.

9 Burgos, 94 F.3d at 863 (quoting United States v. Lowe, 65 F.3d 1137,

1142 (4th Cir. 1995)).

10 See United States v. Figurski , 545 F.2d 389, 392 (4th Cir. 1976); see

generally United States v. Rose, 12 F.3d 1414, 1425 (7th Cir. 1994) (noting that witnesses in criminal cases are frequently participants in the

crimes at issue, and it is for the jury to decide their credibility).

11 Appellee's Br. at 20-21.

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sion. We reject this argument because, as stated above, such credibility determinations are strictly a matter for the jury. Accordingly, we

decline to disturb Douglas' conviction on this ground.

We affirm Douglas' and Johnson's conspiracy convictions. We

grant Johnson's motion to file a pro se supplemental brief, but find

that the issues he raises therein are without merit. 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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