United States of America, Plaintiff-appellee, v. Jerry Singletary, Defendant-appellant.united States of America, Plaintiff-appellee, v. Douglas Gregg Sansbury, Defendant-appellant, 948 F.2d 1283 (4th Cir. 1991)

Jerry Singletary and Gregg Sansbury, federal prisoners, appeal their convictions for conspiracy to possess with intent to distribute crack cocaine and for possession with intent to distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a) (1) and 846. Singletary claims that the evidence was insufficient to sustain a conviction under Count 2 of the indictment, which charged him with possession with intent to distribute crack cocaine on November 17, 1988. Singletary also claims that he was improperly sentenced as a leader or organizer of a criminal activity involving five or more participants, pursuant to U.S.S.G. § 3B1.1. (a). Both Appellants claim that the district court committed error when it allowed the government to cross examine Sansbury with reference to statements given by him pursuant to a proffer letter. Finally, the Appellants claim that the district court erred in permitting the testimony of Abraham Tisdale as to actions by the Appellants in the Summer of 1988 when the indictment charged that the conspiracy between the Appellants did not begin until November of 1988. Because none of the Appellants' claims have merit, we affirm. We briefly address the issues raised by the Appellants.

* Jerry Singletary contends that there was insufficient evidence to sustain a conviction on the charge of possession with the intent to distribute crack cocaine on November 17, 1988. The standard of review is whether, evaluating the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt. United States v. Whitfield, 715 F.2d 145 (4th Cir. 1983). Under this high standard, Singletary's challenge fails.

The heart of Singletary's argument is that he was the victim of mistaken identity. Although this is certainly an interesting contention, there is no claim that the jury failed to consider it. In this instance, the jury chose to disregard evidence that supported a coincidence theory and, instead, chose to believe the direct testimony of South Carolina Law Enforcement Division Agent Teresa Woods and Jean Matthews, a confidential informant, both of whom affirmatively identified the appellant as the person who sold them narcotics on November 17, 1988. Viewing the evidence in the light most favorable to the prosecution, the result reached by the jury is rational and is supported by evidence.

II

Singletary also argues on appeal that the district court misapplied the Sentencing Guidelines in giving him a four level enhancement under U.S.S.G. § 3B1.1. (a) for being an organizer or leader of a criminal activity involving five or more participants. Singletary claims that Gregg Sansbury, his codefendant, who also received an enhancement for being an organizer or leader, had the sole decision making authority and intellectual capacity for leadership within their organization.

The Commentary to the Sentencing Guidelines provides helpful direction to the Court on this issue:

Factors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. There can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy.

U.S.S.G. § 3B1.1(a) application n. 3.

Contrary to Singletary's assertion, we find that the district court correctly enhanced his Offense Level Total. Singletary recruited all accomplices and/or couriers, and planned and organized the illegal scheme along with Sansbury. In addition, Singletary supervised all street sales and split the profits with his financier, Sansbury. In short, Sansbury raised the capital; Singletary handled the distribution. Four level enhancements under section 3B1.1. (a) were appropriate for both Appellants.

III

Both Singletary and Sansbury object, pursuant to Fed. R. Crim. P. 11(e) (6) and Fed.R.Evid. 410, to the admission of statements made by Sansbury in a proffer letter executed on January 26, 1990, which were used to impeach him on cross examination. However, because Fed. R. Crim. P. 11(e) (6) and Fed.R.Evid. 410 only bar the use of statements made in connection with pleas "against the person who made the plea or offer," Jerry Singletary has no basis to object to the admissibility of such statements as he was not involved in the proffer letter discussions.

Furthermore, Gregg Sansbury waived any rights he might have had under Fed. R. Crim. P. 11(e) (6) and Fed.R.Evid. 410 when he signed the proffer letter. In the proffer letter, which Sansbury signed upon his arrest, he denied any involvement in the drug business but indicated that he knew that Jerry Singletary had a long history of dealing drugs. The terms of the proffer letter stated that any statements made pursuant to the proffer would not be used against him in any civil or criminal proceeding, except as follows:

In the event that [Sansbury] is a witness at a trial concerning any matter discussed in this proffer and testifies materially different from any statements or other information provided during this proffer or discussion, the Government may cross-examine [Sansbury] concerning any statements made or other information provided during this proffer....

At the trial, Sansbury took the stand and stated that he had no idea that Singletary was a drug dealer until federal agents came to seize one of Sansbury's cars two weeks before his arrest. Because Sansbury's statements were materially different from the statements made in the proffer, it was not error for the district court to allow the government to use the proffer statements to impeach Sansbury on cross examination.

IV

Finally, the Appellants argue that the district court committed error in refusing to grant their motions for a directed verdict of acquittal as to the conspiracy charged in Count One of the indictment. Appellants allege that the district court committed reversible error when it allowed Abraham Tisdale to testify about acts occurring in the summer of 1988 when the indictment charged that the conspiracy did not begin until November of 1988. As a result of this error, Appellants claim that they were prejudiced in that they were not permitted to adequately prepare a defense to Count One. These objections are without merit.

The U.S. Supreme Court has held it proper in a conspiracy case to admit evidence of acts done in furtherance of the conspiracy alleged to have taken place before the dates charged in the indictment. Heike v. United States, 227 U.S. 131, 145 (1913). Evidence of conduct of a defendant and his coconspirators prior to the date stated in the indictment is admissible to shed light upon and establish the conspiracy. Parr v. United States, 255 F.2d 86 (5th Cir. 1958), cert. denied, 358 U.S. 824 (1958); see also United States v. Enright, 579 F.2d 980, 988 (6th Cir. 1978) (holding that evidence of a conspirator's actions, even though they may have occurred before the beginning of the conspiracy alleged in the indictment, are admissible as proof of motive or intent which touches upon the conspiracy charged in the indictment).

Under Heike and its progeny, the district court was correct in allowing Tisdale to testify about the Appellants' actions in the summer of 1988 which tended to show the beginnings of the conspiracy alleged in Count One.

V

In conclusion, we find no merit in the Appellants' arguments. Accordingly, we affirm the convictions of Jerry Singletary and Gregg Sansbury on all counts.

AFFIRMED.