United States of America, Plaintiff-appellee, v. Mack Omega Wingate, Defendant-appellant.united States of America, Plaintiff-appellee, v. Gary Keith Clark, Defendant-appellant.united States of America, Plaintiff-appellee, v. William Bryan Cook, Defendant-appellant.united States of America, Plaintiff-appellee, v. Scott Dennis, Defendant-appellant.united States of America, Plaintiff-appellee, v. Orlando Farrar, Defendant-appellant.united States of America, Plaintiff-appellee, v. Aaron Pascal Little, Defendant-appellant.united States of America, Plaintiff-appellee, v. Jacqueline Tate Little, Defendant-appellant.united States of America, Plaintiff-appellee, v. Michael Aaron Little, Defendant-appellant.united States of America, Plaintiff-appellee, v. William Frank Nichols, Defendant-appellant, 854 F.2d 1318 (4th Cir. 1988)

Defendants appeal their convictions on various drug-related charges, challenging the sufficiency of the evidence and raising various other alleged trial errors. We affirm.

Viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80 (1942), the evidence at trial shows that Michael Aaron Little, in partnership with James R. Miller, operated a cocaine distribution network in the Charlotte, North Carolina area from April 1985 through January 1986. Michael Little initially purchased multiple-ounce quantities of cocaine from his suppliers, but later expanded the network and increased his purchases to multiple kilograms. He resold the cocaine in various quantities to William Bryan Cook, Scott Dennis, Orlando Farrar, and William Frank Nichols, and to others. His parents, Aaron Pascal and Jacqueline Tate Little, allowed him to store cocaine at their home and transact sales there. They also delivered cocaine and handled money for their son. In addition, cocaine was stored at the home of Gary Keith Clark, another customer of Michael Little. After Little was arrested, Cook operated the distribution network with the assistance of Mack Omega Wingate.

Michael Little was convicted of one count of conspiracy to possess cocaine with intent to distribute, 21 U.S.C.A. Sec. 846 (West 1981), one count of engaging in a continuing criminal enterprise, 21 U.S.C.A. Sec. 848 (West 1981 & Supp.1988), nine counts of possession with intent to distribute and eight counts of distribution, 21 U.S.C.A. Sec. 841(a) (1) (West 1981). Aaron and Jacqueline Little were convicted of conspiracy and two counts of possession with intent to distribute. Cook was convicted of conspiracy, three counts of possession with intent to distribute and one count of distribution. Dennis, Farrar, Nichols, Clark, and Wingate were convicted of conspiracy.

Michael Little's conviction under section 848 for engaging in a continuing criminal enterprise required proof of five elements:

1) a felony violation of the federal narcotics laws;

2) as part of a continuing series of violations;

3) in concert with five or more persons;

4) for whom the defendant [was] an organizer or supervisor;

5) from which he derive [d] substantial income or resources.

United States v. Lurz, 666 F.2d 69, 75 (4th Cir. 1981), cert. denied, 455 U.S. 1005, 457 U.S. 1136, 459 U.S. 843 (1982). He contends that there was insufficient evidence to establish that he was an organizer or supervisor of five or more individuals. He also maintains that the trial court erred in charging the jury that conviction on the conspiracy count could be considered as the predicate felony conviction.

The government was not required to show that Michael Little supervised five or more people at the same time or in the conduct of the same predicate felony. United States v. Rhodes, 779 F.2d 1019, 1026 (4th Cir. 1985), cert. denied, 476 U.S. 1182 (1986). It only had to establish that he supervised them in the conduct of the same continuing criminal enterprise. Id. The evidence demonstrated that he supervised his parents, Aaron and Jacqueline Little, and Gary Clark. He also supervised Darrell Hodge and Mike Taylor, who worked for him at various times. In addition, James Miller was enlisted as a dealer before being made a partner. This evidence was sufficient to establish that Michael Little supervised at least five people in the conduct of his drug enterprise.

Conspiracy is a lesser included offense of engaging in a continuing criminal enterprise. Jeffers v. United States, 432 U.S. 137, 150 (1977). Thus, the government could not "first prove a conspiracy to distribute to establish a Sec. 846 violation, and then move on to convict under Sec. 848 as well, by using the very same conspiracy to distribute for the felony violation of the federal narcotics laws." Lurz, 666 F.2d at 76.

The district court improperly instructed the jury that it could consider the conspiracy count as a predicate offense necessary to establish the continuing criminal enterprise count. Although the prosecuting attorney informed the court that it had improperly charged the conspiracy count as a potential predicate felony, a curative instruction was not given because defense counsel assured the court that no error had been committed. Thus, any error in the charge was waived by the failure to object. Fed. R. Crim. P. 30. Further, a defendant may not complain of invited error. United States v. Jones, 542 F.2d 186, 212-13 n. 56 (4th Cir.), cert. denied, 426 U.S. 922 (1976); see also Henry v. Mississippi, 379 U.S. 443, 451 (1965).

"The essence of the crime of conspiracy is an agreement to engage in a criminal act." United States v. Manbeck, 744 F.2d 360, 386 (4th Cir. 1984), cert. denied, 469 U.S. 1217 (1985). To convict Defendants of conspiracy the government was required to prove that they were knowing and willing participants in the conspiracy. Id.; United States v. Norris, 749 F.2d 1116, 1121 (4th Cir. 1984), cert. denied, 471 U.S. 1065 (1985). Clark, Dennis, Farrar, and Nichols challenge their conspiracy convictions, asserting that there was insufficient evidence to prove that they were more than mere buyers.

The overwhelming testimony that Clark was paid to store cocaine for Michael Little was clearly sufficient to establish that he was a knowing and willing participant in the conspiracy. Further, Michael Little's drug records showed he regularly fronted multiple-ounce quantities to Dennis, Farrar, and Nichols. The frequency and amount of their purchases, in combination with the fact that Michael Little fronted the cocaine, was sufficient evidence from which the jury could infer that they were knowing and willing participants in the conspiracy.

Wingate challenges his conspiracy conviction on the ground that the government failed to prove that he participated in the single conspiracy charged in the indictment. Whether the evidence established a single conspiracy or multiple conspiracies was an issue for the jury. United States v. Urbanik, 801 F.2d 692, 695 (4th Cir. 1986). "If the jury is properly instructed, the finding of a single conspiracy must stand unless the evidence, taken in the light most favorable to the government, would not allow a reasonable jury so to find." Id.

There was no objection to the jury instructions on this issue, and the government presented sufficient evidence to allow the jury to find that Wingate participated in a single conspiracy. A co-conspirator testified that when Wingate was arrested he admitted to being involved in the conspiracy. A customer of Michael Little and Cook also testified that pursuant to Cook's instructions, he purchased cocaine from Wingate on several occasions when he could not locate Cook.

Aaron and Jacqueline Little challenge the sufficiency of the evidence to support their convictions on the substantive possession with intent to distribute counts. However, the convictions are supported by considerable evidence that the Littles knowingly stored cocaine for their son, allowed him to transact sales in their home, and assisted him by delivering cocaine and handling the drug money.

Finally, Defendants raise numerous other issues of alleged error and contend that the cumulative effect deprived them of a fair trial. To the contrary, a review of the record does not support these contentions and demonstrates that all Defendants were afforded a fair trial.

AFFIRMED.