911 F.

2d 726
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

United States Court of Appeals, Fourth Circuit.

Appeal from the United States District Court for the Northern District of
West Virginia, at Elkins. William M. Kidd, Senior District Judge. (CR-89106)
John Lewis Marks, Jr., Clarksburg, W.V., for appellant.
William A. Kolibash, United States Attorney, Robert H. McWilliams,
Assistant United States Attorney, Wheeling, W.V., for appellee.
N.D.W.Va.
AFFIRMED.
Before DONALD RUSSELL and WILKINSON, Circuit Judges, and
FRANK W. BULLOCK, Jr., United States District Judge for the Middle
District of North Carolina, sitting by designation.
PER CURIAM:

Cornelius Snow ("Snow") was convicted of possession of cocaine with intent to

cocaine with intent to distribute in violation of 21 U.S.C. Sec. 846. Snow was
sentenced under the sentencing guidelines. Snow contends the district court
erred by (1) failing to grant a mistrial due to a guilty plea entered by his
codefendant at the conclusion of the Government's case; (2) permitting audio
tapes of his drug transactions to be edited and played for the jury and later
taken into the jury room during deliberations; (3) depriving his counsel of
access to notes of interviews with government witnesses in violation of the
Jencks Act, 18 U.S.C. Sec. 3500; (4) allowing the Government to present
testimony of his prior bad acts under Fed.R.Evid. 404(b); (5) defining
"distribution" in the jury instructions more broadly than in 21 U.S.C. Sec.
802(11); (6) refusing to dismiss the indictment despite statements made by the
Assistant United States Attorney in response to questions asked by the grand
jury; (7) allowing his conviction to stand despite insufficient evidence; (8)
failing to correctly determine the amount of cocaine involved; and (9) finding
that he used a firearm in the commission of the offenses. We affirm.
2

Snow and his non-identical twin brother were both originally charged in this
case. At the conclusion of the Government's evidence, Snow's brother entered a
plea of guilty. Snow argues that the trial court erred by refusing to grant a
mistrial because of the potential for guilt by association with his twin brother.
There is no merit to this argument. A defendant's motion for severance or
mistrial after a codefendant pleads guilty during a joint trial is a matter left to
the sound discretion of the trial court. United States v. Herrera, 832 F.2d 833,
836-37 (4th Cir.1987). The trial judge gave a proper cautionary instruction
which minimized any prejudice to Snow from his brother's pleading guilty
during the trial. See United States v. Del Carmen Ramirez, 823 F.2d 1, 3 (1st
Cir.1987) (similar instruction upheld where several codefendants pled guilty
during a joint trial).

Snow also alleges prejudicial error because two edited audio tapes of drug
transactions, which he contends had not been admitted into evidence, were
allowed in the jury room during deliberations. These edited tapes had been
played to the jury during the trial. There is no contention that any evidence
favorable to Snow was edited out of the audio tapes and Snow's counsel had
ample opportunity to check the edited tapes against the full-length tapes. The
tapes were edited by the Government to take out background noises, long lulls
in the conversation, and portions which were inaudible. Editing tapes in this
manner is permissible. See United States v. Pipito, 861 F.2d 1006, 1011 (7th
Cir.1987) (no error for trial judge to admit tapes which the Government had
edited where defendant's counsel presented no evidence that the jury was
misled); United States v. Carbone, 798 F.2d 21, 24-25 (1st Cir.1986) (as long as
admitted tape was properly authenticated, no error to filter out background

noises); United States v. Brown, 692 F.2d 345, 350 (5th Cir.1982) (no error for
trial judge to admit tapes from which irrelevant material had been edited out by
the Government); United States v. Gordon, 688 F.2d 42, 43 (8th Cir.1982) (no
error for Government to filter out background noises from admitted tapes).
Furthermore, it is undisputed that the full-length tapes were admitted into
evidence. By listening only to the edited tapes, the jury heard what was on the
full-length tapes, but in an abbreviated form. It is clear from the record that the
trial judge intended to admit the edited tapes. In fact, the record indicates that
one of the edited tapes was admitted, although the record does not indicate any
response from the court when the Government offered the second edited tape.
There was no prejudice to Snow from the jury listening to both edited tapes
during deliberations, since the full-length tapes were also in evidence and the
two edited tapes were played to the jury during the trial. Defendant's contention
to the contrary is without merit.
4

Snow also contends that certain interview notes of an investigating officer were
Jencks Act, 18 U.S.C. Sec. 3500, material since the officer wrote "substantially
verbatim" what the witnesses told him, and that these notes were improperly
withheld from Snow's counsel. The trial court, after an in camera review,
decided that the writings in question were not Jencks Act material, and denied
the request for production. We agree with the district judge.

Snow also complains about the admission of evidence of numerous drug sales
prior to the time of the alleged conspiracy. Again, Snow's contention is without
merit, since the evidence in question dealt with numerous drug sales by him to
the same conspirators as in the present case during the months leading up to the
time of the alleged conspiracy. A trial judge has wide discretion to admit prior
bad act evidence pursuant to Fed.R.Evid. 404(b), and the judge's decision will
not be overturned unless it is clearly erroneous. United States v. Brugman, 655
F.2d 540, 544-45 (4th Cir.1981). Once admitted, the evidence is deemed
admissible on appeal if it is admissible under Rule 404(b) on any theory.
United States v. Gallo, 782 F.2d 1191, 1194 (4th Cir.1986), cert. denied, --U.S. ----, 109 S.Ct. 2074 (1989). It is clear that the evidence was admissible on
several grounds under Rule 404(b), and was especially probative of the intent to
pursue a common scheme or plan to sell cocaine to favored customers. See
United States v. Tedder, 801 F.2d 1437, 1443-44 (4th Cir.1986), cert. denied,
480 U.S. 938 (1987) (evidence of plan to sell marijuana in the mid-1970's
relevant for 1984 indictment relating to an expanded scheme to sell marijuana);
Gallo, 782 F.2d at 1193-94 (evidence of drug deals between the defendant and
a government witness happening four years prior to the charged offense was
admissible to prove intent, scheme, opportunity, or business enterprise).

Snow further argues that he is entitled to a new trial because the trial judge
used a definition of "distribution" in his jury instructions other than the one in
the statute. Title 21 U.S.C. Sec. 802(11) provides that "[t]he term 'distribute'
means to deliver ... a controlled substance." The trial judge instructed that the
term "distribution" includes not only physical transfer of the drugs but also
other acts in furtherance of the transfer, such as arranging or supervising the
delivery, or negotiating for or receiving the purchase price. Snow's argument
about an over-broad definition of "distribution" is meritless. There is no serious
contention in this case that Snow only supervised delivery instead of actually
delivering drugs. Furthermore, we have previously approved a definition of
distribution similar to the one used by the trial court. See United States v.
Crockett, 813 F.2d 1310, 1316 (4th Cir.) (distribution "requires either physical
transfer of the drug or other acts in furtherance of the transfer"), cert. denied,
484 U.S. 834 (1987).

Snow also complains that in answering a question from a grand juror before the
return of the indictment, the Assistant United States Attorney exceeded his
proper role and became a witness against him. The district judge carefully
examined the testimony at issue, and concluded that the Assistant United States
Attorney did not exceed his role in answering the question. We agree.

Snow's remaining assignments of error concern the sufficiency of the evidence

At sentencing, the trial judge determined that Snow had sold between 100-199
grams of cocaine, giving him a base offense level of 18. Two levels were added
for possession of a firearm during the commission of the offenses, making his
total base offense level 20. Snow was in criminal history category I, placing him
in a guidelines range of 33 to 41 months. We have adopted a preponderance-ofthe-evidence standard for the findings of fact made by the district court during
sentencing. United States v. Urrego-Linares, 879 F.2d 1234, 1237-38 (4th Cir.),
cert. denied, --- U.S. ----, 110 S.Ct. 346 (1989). In determining the relevant facts
before imposing sentence, judges are not restricted to information that would be
admissible at trial, and any reliable information may be considered. United
States v. Roberts, 881 F.2d 95, 106 (4th Cir.1989). Findings of fact regarding
sentencing must be upheld unless they are clearly erroneous. United States v.
Williams, 880 F.2d 804, 806 (4th Cir.1989).

10

Snow's principal challenge to his sentence is that it was error to sentence him

for conduct which occurred prior to the offenses for which he was charged,
tried, and convicted. The indictment charged Snow with illegal drug activity
beginning in September 1988. Snow was held accountable for his preSeptember 1988 drug transactions, and the district judge included those
quantities of cocaine in determining his base offense level. We believe that the
trial judge correctly calculated Snow's base offense level at 20. The guidelines
provide that a trial judge shall add "all such acts and omissions that were part of
the same course of conduct or common scheme or plan as the offense of
conviction" into the calculation of the base offense level. U.S.S.G. Sec.
1B1.3(a)(2). The background notes to Section 1B1.3 explain this section's
applicability to drug cases:
11

Similarly, in a drug distribution case, quantities and types of drugs not specified
in the count of conviction are to be included in determining the offense level if
they were part of the same course of conduct or part of a common scheme or
plan as the count of conviction.

12

The pre-September 1988 cocaine linked to Snow was clearly part of the same
course of conduct since the same customer was involved in those transactions
whose purchases in September 1988 formed the basis for this indictment.
However, Snow argues that Section 1B1.3(a)(2) has no application since he
was not charged with any pre-September 1988 cocaine transactions. This
position has been squarely rejected by the other circuits which have considered
it.* We have also previously held pursuant to the plain language of the
guidelines that uncharged quantities of drugs which are part of the same
common scheme or plan as a count of conviction may be included in
determining a defendant's base offense level at sentencing. See United States v.
Cusack, 901 F.2d 29, 32 (4th Cir.1990) ("In setting the base level offense of 26
by including the two uncharged methamphetamine transactions, the district
court was following Guideline Sec. 1B1.3(a)(2)...."); cf. United States v. Isom,
886 F.2d 736, 738-39 (4th Cir.1989) (base offense level may be enhanced
based on conduct for which a defendant was acquitted); Williams, 880 F.2d at
805-06 (base offense level may be enhanced with quantities of drugs from
counts dismissed pursuant to a plea agreement).

13

Finally, Snow's challenge to the two-level enhancement above his base offense
level for possession of a firearm during the commission of the drug offenses is
without merit. One of Snow's regular customers testified that a gun was present
on at least three occasions during the time she was buying cocaine from him.
The trial judge's determination to credit this testimony was not clearly
erroneous.

14

For the foregoing reasons, the conviction and sentence are affirmed.

15

AFFIRMED.

See United States v. Restrepo, 903 F.2d 648 (9th Cir.1990) (prior opinion 883
F.2d 781 [9th Cir.1989] withdrawn and rehearing granted, 896 F.2d 1228 [9th
Cir.1990]; United States v. Rutledge, 900 F.2d 1127, 1132 (7th Cir.1990);
United States v. Woolford, 896 F.2d 99, 102-04 (5th Cir.1990); United States v.
Sleet, 893 F.2d 947, 948-49 (8th Cir.1990); United States v. Mocciola, 891
F.2d 13, 15-16 (1st Cir.1989)