US v. Wilson Garrett, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:09-cr-00265-AW-1 Copies to all parties and the district court/agency. [998922915].. [11-4895]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4895

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WILSON LEE GARRETT, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Alexander Williams, Jr., District
Judge. (8:09-cr-00265-AW-1)

Submitted:

August 17, 2012

Decided:

August 23, 2012

Before GREGORY, AGEE, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Brian K. McDaniel, BRIAN K. MCDANIEL & ASSOCIATES, Washington,
D.C., for Appellant. Rod J. Rosenstein, United States Attorney,
Christen
A.
Sproule,
Assistant
United
States
Attorney,
Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Wilson Lee Garrett, Jr., appeals from the jury verdict
convicting him of conspiracy to distribute and to possess with
intent to distribute cocaine; attempt to possess with intent to
distribute

cocaine;

possession

with

intent

to

distribute

cocaine; and possession of firearms in furtherance of a drug
trafficking crime.
the

evidence

evidence.

for

On appeal, he challenges the sufficiency of
two

counts

and

the

admission

of

certain

We affirm.

I.
“A

defendant

challenging

evidence faces a heavy burden.”
F.3d 233, 245 (4th Cir. 2007).

the

sufficiency

of

the

United States v. Foster, 507
We review a sufficiency of the

evidence challenge by determining whether, viewing the evidence
in the light most favorable to the Government, any reasonable
trier of fact could find the essential elements of the crime
beyond a reasonable doubt.

Id.

We will uphold the jury’s

verdict if substantial evidence supports it and will reverse
only in those rare cases of clear failure by the prosecution.
Id. at 244-45.
Garrett

first

contends

that

the

evidence

was

insufficient to support his conspiracy conviction because, at
most,

it

established

nothing
2

more

than

a

buyer/seller

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relationship between himself and David Zellars, a cooperating
witness.

If a distribution transaction includes an agreement

that the buyer will resell the cocaine in the marketplace, the
two

participants

to

the

distribution

transaction

have

also

“conspired” to the redistribution of the cocaine, a separate
offense,

and

therefore

can

be

found

guilty

not

only

distribution offense but also of a conspiracy offense.
States v. Edmonds, 679 F.3d 169, 174 (4th Cir. 2012).

of

the

United
To prove

conspiracy, the Government need not prove an explicit agreement
and may rely upon indirect evidence from which the conspiracy
agreement may be inferred.

Thus, we have concluded that “the

amount of cocaine involved in the distribution transaction, if
sufficiently great, may indicate that the parties have engaged
in the distribution transaction with an implicit agreement of
further redistribution.”

Id.

In addition, “the regularity of

individual distribution transactions may indicate the existence
of a conspiracy.”
consignment

Id.

arrangement

Moreover, “a transaction involving a
or

the

‘fronting’

of

drugs

indicates

conspiracy to engage in drug trafficking beyond the immediate
distribution transaction.”

Id.

Here, the evidence showed that Garrett made repeated
multi-kilogram

cocaine

purchases

from

Zellars,

that

Zellars

fronted cocaine to Garrett on a regular basis, and that Zellars
and

Garrett

had

established

a
3

verbal

code

and

ongoing

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notifications regarding cocaine sales.

Contrary to Garrett’s

contentions, this evidence showed more than just a buyer-seller
relationship, and we conclude that the evidence was more than
sufficient
United

to

States

(holding

support
v.

that

transactions

Garrett’s

Reid,

523

continued

between

conspiracy

F.3d

310,

317

relationships

parties

are

conviction.
(4th

Cir.

2008)

repeated

and

indicative

See

drug

of

a

conspiracy,

particularly when the transactions involve substantial amounts
of drugs).

II.
Garrett next contends that the district court erred by
permitting

Zellars

to

testify

about

Zellars’

“arrest

for

70

kilograms of cocaine, his involvement in numerous high volume
drug transactions and the drug network he helped bring down.”
Garrett asserts that none of this evidence was related to him
and,

as

Garrett

such,
did

was

not

irrelevant

cite

to

the

and

highly

specific

prejudicial.

testimony

of

While

which

he

complains, Zellars testified as to where he obtained the cocaine
he

was

going

to

sell

to

Garrett

to

redistribute.

He

also

testified regarding his arrest following the seizure of a large
shipment and his agreement to cooperate with the Government to
provide information about Garrett and others.
object to this testimony.
4

Garrett did not

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Rule 403 of the Federal Rules of Evidence provides
that,

although

relevant,

evidence

may

be

excluded

if

its

probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
403. *

Fed. R. Evid.

Because Garrett did not challenge the admission of this

testimony at trial, this claim is reviewed for plain error.

To

establish plain error, Garrett must demonstrate that: (1) there
was error; (2) the error was “plain;” and (3) the error affected
his substantial rights.
732 (1993).

United States v. Olano, 507 U.S. 725,

Even if the three elements of this standard are

met, we may exercise our discretion to notice the error only if
“the

error

public

seriously

reputation

affect[s]

of

judicial

the

fairness,

proceedings.”

integrity,
Id.

or

(internal

quotation marks and citation omitted).
Initially,
admitted

to

conspiracy

provide
in

which

we
the

find

that

context,

Garrett

was

the

evidence

detail,

and

involved.

was

properly

scope
The

of

the

testimony

established where Zellars got the cocaine that he provided to
Garrett, and it also explained how Zellars became a cooperating
*

The Federal Rules of Evidence were stylistically amended
in December 2011, after Garrett’s conviction. The substance of
the Rules, however, remained the same.

5

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Furthermore,

evidence

should

have

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even

been

assuming,

excluded,

arguendo,

the

that

the

was

not

evidence

unfairly prejudicial and therefore its admission did not affect
Garrett’s substantial rights.

The evidence was neither lengthy

nor likely to inflame the jury.

Thus, the district court did

not commit plain error by allowing Zellars’ testimony.

III.
Next,

Garrett

contends

that

the

district

court

improperly allowed the Government to offer evidence of Garrett’s
previous arrest to impeach Garrett in violation of Federal Rule
of

Evidence

convictions

609
for

truthfulness).
Government

asked

(permitting
the

admission

purposes

During
Garrett

of

Garrett’s
if

he

made

of

attacking
cross
false

certain
a

prior

defendant’s

examination,
statements

to

the
the

police when he was questioned during a stop of his vehicle.
Garrett denied making any false statement, and the Government
then questioned Garrett about his statement to police that he
had never been arrested before.

Specifically, over Garrett’s

objection, the Government asked Garrett whether he told police
that he had been arrested in 2001 for assault and for using and
carrying a handgun, and Garrett said he had not.
A

district

court’s

evidentiary

rulings

are

reviewed

for abuse of discretion, which occurs only when the district
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rests

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decision
upon

a

is

guided

clearly

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by

erroneous

erroneous

legal

factual

principles

or

finding.

United

States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010).

Further,

evidentiary rulings are subject to harmless error review, such
that

any

error

is

harmless

where

we

may

say

“with

fair

assurance, after pondering all that happened without stripping
the erroneous action from the whole, that the judgment was not
substantially

swayed

by

the

error.”

Id.

(quotation

marks

omitted).
Under Rule 608(b), evidence of Garrett’s lie to the
police

was

admissible

as

impeachment

truthfulness or untruthfulness.
F.3d 948, 956 (4th Cir. 1994).
to

the

police

(about

the

if

probative

of

United States v. McMillan, 14
Garrett’s testimony that he lied

arrest

and

numerous

other

issues)

clearly indicates a character for untruthfulness and, thus, was
admissible under Rule 608(b).
of discretion.

Accordingly, there was no abuse

Moreover, even if there was, this limited line

of questioning was undoubtedly harmless given the plethora of
evidence against Garrett.

IV.
Finally, Garrett asserts that there was insufficient
evidence to show an intent to distribute the actual drugs found
in his home, given the small amount (3.4 grams) and the fact
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the

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drugs

paraphernalia.

were

not

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found

in

proximity

to

drug

As such, Garrett contends that no reasonable

mind could conclude that this cocaine was intended for anything
other than personal use.
Intent to distribute narcotics may be inferred from a
defendant’s

possession

of

drug-packaging

paraphernalia

quantity of drugs larger than needed for personal use.
States v. Fisher, 912 F.2d 728, 730 (4th Cir. 1990).

or

a

United

Possession

of large amounts of cash and firearms constitutes “additional
circumstantial
distribution.”
may

also

evidence

of

Id. at 731.

constitute

.

.

.

in

narcotics

Possession of an electronic scale

circumstantial

distribute narcotics.

involvement

evidence

of

an

intent

to

United States v. Harris, 31 F.3d 153,

156-57 (4th Cir. 1994).
Viewing the evidence in the light most favorable to
the Government, the evidence presented at trial overwhelmingly
supports a finding that Garrett possessed the cocaine with an
intent to distribute.

Police found 3.4 grams of cocaine in a

jacket in the master bedroom closet.

An expert testified that

the quantity of cocaine was inconsistent with personal use and
constituted 34 dosage units of cocaine.

Moreover, the cocaine

was found in a jacket making the drugs mobile, as opposed to
being in the nightstand with paraphernalia for personal use.

In

addition, the expert testified that the currency, digital scale,
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money counter, six phones, and firearms found at Garrett’s home
indicated that Garrett was “a narcotics distributor.”

As such,

Garrett’s claim of insufficient evidence is without merit.
Based
convictions.

on

the

foregoing,

we

affirm

Garrett’s

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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