UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5540

DAVID FITZGERALD LIGHTNER,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 94-5541

BRODERICK EDWARD GRAVES, a/k/a

Broad,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of North Carolina, at Charlotte.

Robert D. Potter, Senior District Judge.

(CR-93-133-P)

Submitted: April 28, 1995

Decided: June 5, 1996

Before WIDENER, WILKINS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Norman Butler, LAW OFFICES OF HAROLD BENDER, Charlotte,

North Carolina; Randolph Marshall Lee, Charlotte, North Carolina,

for Appellants. Mark T. Calloway, United States Attorney, Gretchen

C.F. Shappert, Assistant United States Attorney, Charlotte, 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Unpublished opinions are not binding precedent in this circuit.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:

Appellants, David Lightner and Broderick Graves, appeal from

their convictions on charges relating to cocaine trafficking. Lightner

and Graves were convicted of one count of conspiracy to possess with

intent to distribute cocaine base, 21 U.S.C. § 846 (1988). Lightner

was also convicted of one count of possession with intent to distribute

cocaine base, 21 U.S.C. § 841(a)(1) (1988). Finding no error, we

affirm.

I

This prosecution resulted from an investigation conducted by a narcotics interdiction task force operating out of the Charlotte Douglas

International Airport. Agents stopped, questioned, and eventually

searched Kristopher Gordon after he deplaned a flight from Newark,

New Jersey. Gordon possessed approximately one kilogram of

cocaine base. Gordon agreed to cooperate with the agents, and he

stated that he was supposed to deliver the cocaine base to Broderick

Graves. At the agents' behest, Gordon paged Graves from the airport.

Graves responded to the call and told Gordon that he would send "his

girl" to pick up Gordon. Graves then called back and stated that he

was going to send "his boy" instead. The agents escorted Gordon back

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into the terminal and followed him while they waited for someone to

approach. Eventually Lightner approached Gordon and motioned for

Gordon to follow him. As Gordon and Lightner approached an escalator, Lightner noticed the agents and stated, "man, this is the police."

Lightner was subsequently arrested.

Further investigation revealed that Gordon had met Graves on a

previous trip to Charlotte. Gordon had driven to Charlotte with his

friend Kenny Bachelor, who sold drugs in New Jersey. While in

Charlotte, Bachelor had a conversation with a friend, Kim Flemmings, about his drug dealing in New Jersey. Flemmings mentioned

to Bachelor that she knew some connections in Charlotte and that she

could introduce Bachelor to Graves, who also dealt drugs.

Gordon and Bachelor were subsequently introduced to Graves, and

over the next ninety days Gordon and Bachelor made numerous trips

to Charlotte and began delivering large amounts of cocaine and

cocaine base to Graves. Bachelor's girlfriend also delivered cocaine

base to Graves on one occasion. Bachelor and Gordon both testified

that Graves supplied cocaine to Lightner. Phone records demonstrated

numerous telephone calls between Gordon and Bachelor in Newark

and residences associated with Graves and Lightner in Charlotte.

Graves and Lightner contend on appeal that the district court erred

in denying Lightner's motion for a mistrial, in denying Lightner's

motion to suppress a statement made by Lightner upon arrest, and in

enhancing Graves's sentence four levels because of his role in the

conspiracy. Graves filed a pro se supplemental brief raising several

contentions not addressed by counsel.

II

Lightner contends that the district court erred in failing to grant his

motion for a mistrial. Lightner's counsel bases this argument on his

belief that two of the Government's witnesses violated a sequestration

order by discussing their testimony during the trial. We reject this

argument because the record clearly demonstrates that no violation of

the sequestration order occurred.1 Therefore, the district court did not

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1 On cross examination, Agent Taylor appeared to testify that she had

discussed what she remembered about the arrest with Agent Beam that

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abuse its discretion in denying the motion. See United States v.

Alonzo, 689 F.2d 1202, 1204 (4th Cir. 1982).

III

Lightner next claims that the district court erred in denying his

motion to suppress a statement made by Lightner to Officer Witherspoon shortly after the arrest. Officer Witherspoon testified that after

he arrested Lightner he escorted Lightner back into the airport office

and Lightner stated that he had just gotten out of prison and that he

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morning after Agent Beam had testified. On redirect and recross, however, it became clear that Agent Taylor misunderstood the question put

to her and had only discussed the arrest with Agent Beam prior to coming to trial:

Q: Now, I believe that Mr. Butler questioned you about your

conversations with Karen Beam today. Did you have any

conversations with Karen Beam after she testified today?

A: No, I did not.

Q: And with regard to getting your stories straight, have you

ever had a conversation with Agent Beam in an effort to get

your stories straight?

A: No, I haven't.

Agent Taylor testified further on recross:

Q: And did you misunderstand me when I asked you if you

talked to Officer Beam after she testified today and you

said, "yes"?

A: I have not spoken with her after she testified today.

Q: You didn't do that?

A: I did not.

Q: So you didn't understand my question when I asked you

that a few minutes ago?

A: I thought you asked me prior to us coming in here today?

Q: No, ma'am. After she testified?

A: Oh, I misunderstood you.

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could not do any more time. Lightner's counsel sought to suppress

this statement on the ground that it was the product of a custodial

interrogation and Lightner was never advised of his Miranda rights.

We reject this argument because the district court's factual findings

that Lightner was advised of his Miranda rights and that his statement

was voluntarily made are not clearly erroneous. See United States v.

Rusher, 966 F.2d 868, 873 (4th Cir.), cert. denied, 61 U.S.L.W. 3285

(1992). Officer Witherspoon testified that he read Lightner his

Miranda rights, that Lightner did not wish to waive his rights, that

Witherspoon ceased to question Lightner, and that Lightner's statement that he could not go back to prison was not made in response

to any questioning.

Lightner also argues for the first time on appeal that even if he

were read his Miranda rights, the statement should have been suppressed because it was the product of police coercion that rendered

his statement involuntary. Lightner has waived appellate review of

this claim but for plain error by his failure to specifically raise it

before the district court. See United States v. Olano, ___ U.S. ___, 61

U.S.L.W. 4421 (U.S. Apr. 26, 1993) (No. 91-1306). Lightner presented no evidence to support his allegations of coercion, and based on

the record below, the district court did not commit plain error in finding that Lightner's statement was voluntarily made.

IV

Graves claims that the district court erred in enhancing his sentence

for his role in the offense. The Sentencing Guidelines provide for a

four-level enhancement where a defendant was a leader or organizer

of criminal activity that involved five or more participants or was otherwise extensive. United States Sentencing Commission, Guidelines

Manual, § 3B1.1(a) (Nov. 1993). To qualify for this enhancement, the

defendant must have been a leader or organizer of at least one of the

participants to the criminal activity. USSG § 3B1.1, comment. (n.2).

The district court's determination that the defendant played an aggravating role, that the crime involved five or more people, or that the

crime was otherwise extensive is a factual determination that we

review for clear error. United States v. Smith , 914 F.2d 565, 569 (4th

Cir. 1990), cert. denied, 498 U.S. 1101 (1991). The Government was

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required to prove these elements by a preponderance of the evidence.

See McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986).

We reject Graves's arguments because the evidence adduced at

trial supported the court's findings. The evidence showed the existence of a conspiracy between Bachelor and Gordon in New Jersey

and Graves in Charlotte that was capable of procuring and selling

between 1.5 and 5 kilograms of cocaine in a ninety-day period.

Graves was clearly shown to be the leader of the Charlotte segment

of the conspiracy. Lightner purchased cocaine from Graves, and

Graves was the contact person responsible for picking up Gordon at

the airport.

Additionally, when Gordon paged Graves from the airport, Graves

called back and stated that he was sending "his girl" out to pick up

Gordon. Graves then called back and stated that he was sending "his

boy" to pick up Gordon instead. Ultimately Lightner arrived to pick

up Gordon. This testimony demonstrated that Graves exercised some

degree of organizational and supervisory control over at least Lightner and an unknown female. To the extent Graves alleges that Kim

Flemmings was the leader of the conspiracy, we note that whether

Flemmings was also a leader is irrelevant. See USSG § 3B1.1, comment.(n.4). The district court's finding that Graves was a leader or

organizer of the conspiracy was not clearly erroneous.

Graves also contends that the Government failed to show that the

conspiracy was "otherwise extensive." We disagree. Based on the

large amount of drugs distributed across the country over such a short

period of time, such a finding could not be clearly erroneous. We

note, however, that this issue need not be decided. The Government

introduced evidence that the conspiracy involved at least Gordon,

Bachelor, Lightner, Graves, Bachelor's girlfriend, and Kim Flemmings. Accordingly, the conspiracy involved five or more people,

which satisfied the requirements of USSG § 3B1.1(a), independent of

a showing that it was "otherwise extensive."

Finally, Graves filed a supplemental informal brief raising several

issues not addressed by counsel.2 Although given the opportunity to

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2 In addition, Graves contends that the district court erred in enhancing

his sentence for being a leader or organizer in the offense. However, that

claim was addressed in counsel's brief. As noted above, we find that

claim meritless.

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do so, the Government failed to respond to Graves's supplemental

claims. Nevertheless, we find that Graves's contentions lacks merit.

First, Graves contends that he was denied his right to a special verdict on the criminal forfeiture count contained in the indictment.

However, because the forfeiture count was dismissed on the Government's motion, this claims lacks merit.

Next, we reject Graves's argument that the evidence of his participation in the distribution of cocaine powder was at material variance

with the indictment charging conspiracy to distribute cocaine base.

See United States v. Pierce, 893 F.2d 669, 676 (5th Cir. 1990), cert.

denied, 506 U.S. 1007 (1992). In any event, Graves was not prejudiced because the evidence was strong of his participation in a conspiracy to distribute cocaine base. See United States v. Camps, 32

F.3d 102, 105 (4th Cir. 1994), cert. denied, ___ U.S. ___, 63

U.S.L.W. 3626 (U.S. Feb. 21, 1995) (No. 94-6853).

Additionally, we reject Graves's argument that he should not have

received an enhancement for obstruction of justice for perjuring himself at trial. The Government proved Graves's perjury by a preponderance of the evidence. Further, the district court went through the

portions of the transcript reflecting Graves's perjury, reading the

questions and Graves's false answers into the record at sentencing.

The questions and answers clearly involved material matters, and they

were false. Further, the purpose behind the statements could only

have been to deceive. The court's finding of perjury, though not as

specific as it might have been, clearly rested on its determination that

Graves lied to the jury with the intent to deceive. See United States

v. Dunnigan, 507 U.S. 87 (1993); United States v. Smith, 62 F.3d 641

(4th Cir. 1995); United States v. Castner, 50 F.3d 1267 (4th Cir.

1995). We find that the application of the enhancement was not clear

error.

Finally, we reject Graves's argument that the 100:1 sentencing

ratio between cocaine base and cocaine powder is unconstitutionally

vague. Graves forfeited appellate review of this claim but for plain

error by his failure to raise it before the district court. See United

States v. Olano, ___ U.S. at ___, 61 U.S.L.W. at 4423-24. Graves's

reliance upon United States v. Davis, 864 F. Supp. 1303 (N.D. Ga.

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1994) for the proposition that cocaine base and cocaine powder are

synonymous is foreclosed by our prior decisions finding the existence

of a distinction between cocaine base and cocaine powder in the way

it is sold and marketed, and because it is more addictive than cocaine

powder. See United States v. Bynum, 3 F.3d 769, 774 (4th Cir. 1993),

cert. denied, ___ U.S. ___, 62 U.S.L.W. 3552 (U.S. Feb. 22, 1994)

(No. 93-7295); United States v. Thomas, 900 F.2d 37, 39-40 (4th Cir.

1990). Accordingly, Graves has failed to establish plain error.

Lightner's and Graves's convictions and sentences are, accordingly, affirmed. 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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