UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 95-5481

JEFFREY BLAKE JOHNSON,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 95-5482

ROBERT LEE BRUCE, JR.,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of Virginia, at Charlottesville.
Glen M. Williams, Senior District Judge.
(CR-94-61)

Argued: December 6, 1996

Decided: February 12, 1997

Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge, and
DAVIS, United States District Judge for the District of Maryland,
sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Frederick Theodore Heblich, Jr., PARKER, MCELWAIN
& JACOBS, P.C., Charlottesville, Virginia, for Appellant Johnson;
Richard Andrew Davis, Charlottesville, Virginia, for Appellant
Bruce. Donald Ray Wolthuis, Assistant United States Attorney, Roa-
noke, Virginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr.,
United States Attorney, Roanoke, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants Robert Lee Bruce, Jr. and Jeffrey Blake Johnson were
indicted for their participation in a drug conspiracy that operated in
the Harrisonburg, Virginia area. The indictment alleged that Bruce
was the principal and Johnson was a lieutenant in the conspiracy.
Bruce was charged with one count of drug conspiracy, nine drug dis-
tribution counts, the use of a firearm in connection with a drug
offense under 18 U.S.C. § 924(c)(1), being a felon in possession of
a firearm under 18 U.S.C. § 922(g)(1), and attempting to escape from
custody. Johnson was charged with one count of drug conspiracy and
three drug distribution counts.

The drug charges were supported by the testimony of more than
half a dozen witnesses who were involved with the defendants in
crack cocaine distribution and by surveillance evidence of controlled
buys of crack cocaine through the use of a confidential informant. The
firearms counts against Bruce arose from a reverse sting operation in
which Bruce attempted to use cash and cocaine to purchase an auto-
matic M-16 rifle in a hotel room.

Bruce and Johnson were tried before a jury and convicted on all
counts. Bruce was sentenced to life in prison, plus a consecutive term

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of 30 years for the section 924(c) conviction. Johnson was sentenced
to 360 months in prison.

Appellants challenge these convictions on numerous grounds.

I.

Appellants first argue that the government failed to make adequate
disclosure of exculpatory evidence as required by Brady v. Maryland,
373 U.S. 83 (1963). A week before the trial, the government learned
that its confidential informant for the controlled crack cocaine pur-
chases, Dewayne Lingenfelter, had on two occasions falsely impli-
cated Bruce as being involved in drug transactions and had used crack
cocaine during the time frame of the investigation. J.A. at 293-95.
The government disclosed this information to defense counsel, noti-
fied the jury of it during the government's opening statement, and
even warned the jury to "think of [Lingenfelter] as the man that if you
asked if it was sunny outside, that you best go look out the window
yourself . . . there best be some corroboration for what he tells you."
J.A. at 91.

Following completion of the trial, defense counsel obtained infor-
mation that Lingenfelter had pleaded guilty to a charge of making a
false report to police in violation of Virginia Code§ 18.2-461 for
false denial of his involvement in an unwitnessed single car accident.
J.A. at 60-61. The government was unaware of this conviction
because the records of it were in the General District Court for the
City of Staunton, whereas the conspiracy activity at issue in the case
sub judice took place in Harrisonburg. After the trial but prior to sen-
tencing, Johnson and Bruce moved to dismiss the indictments, or in
the alternative for a new trial, because of the new information regard-
ing Lingenfelter. The district court rejected the motion, stating that

          the Government furnished every bit of information it had.
          And this was something that, for whatever failure, did not
          get to the NCIC to be picked up. And whatever it was, it
          was available equally to both sides . . . . With all of the mas-
          sive testimony impeaching this man . . . [disclosure of the
          prior offense] would have been of such minor significance

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          that I don't think it would have changed the result of this
          case.

Supp. J.A. at 27-28. The information, which was unknown to the gov-
ernment and was kept in records located in another jurisdiction, was
not within the obligation of the government to discover. United States
v. Meros, 866 F.2d 1304, 1308 (11th Cir. 1989) ("A prosecutor has
no duty to undertake a fishing expedition in other jurisdictions in an
effort to find potentially impeaching evidence every time a criminal
defendant makes a Brady request for information regarding a govern-
ment witness."). Furthermore, given the government's extensive dis-
closure to the defense and to the jury regarding Lingenfelter's
credibility, the information regarding the unwitnessed single car acci-
dent does not even arguably create a "reasonable probability" that the
result of the proceeding would have been different with disclosure,
nor does it "undermine[ ] confidence in the outcome of the trial."
United States v. Bagley, 473 U.S. 667, 678, 682 (1985).

II.

Appellants next argue that the district court's calculation of drug
weights was clearly erroneous. We disagree. The district court's find-
ings that Bruce was responsible for 6.63 kilograms of cocaine and that
Johnson was responsible for more than one kilogram of cocaine are
more than adequately supported by evidence in the presentence report
adopted by the district court. The calculation for Johnson was sup-
ported by the statements of codefendants Benny Paul and Helen Har-
rison, who testified to having seen Johnson possess and sell cocaine.
Paul estimated the amount at one kilogram. J.A. at 759. Harrison
stated that she saw Johnson and another individual with large plastic
bags of crack cocaine covering a six-foot long table and "stated she
could not even see the tabletop and that the crack cocaine bags were
piled up on one another." J.A. at 761. Regarding Bruce, the presen-
tence report states that "[u]nrefuted evidence" shows that the group
headed by Bruce distributed "no less than 6.63 kilograms of cocaine
base," J.A. at 824, and Bruce offers no evidence to the contrary.
Under such circumstances, the district court's reliance on the presen-
tencing report was not clearly erroneous.

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III.

Appellants next argue that the district court erred in approving a
three-point upward adjustment for Johnson's role in the offense and
a four-point upward adjustment for Bruce's role. Again we review for
clear error and find no error.

Johnson objects to the three-point enhancement for his role as a
"manager or supervisor" of the criminal activity under U.S.S.G.
§ 3B1.1(b). The presentence report states that"[e]vidence indicates
Johnson acted as a supervisor for Bruce, overseeing the distribution
of cocaine base." J.A. at 804. Bruce's supervisory role is supported
by Harrison's testimony that she, Annette McCarthy, and Mervin
"Sonny" Jones sold cocaine for Johnson at his direction. J.A. at 760-
61, 803.

Johnson argues for the first time on appeal that he should have
received at most a two point enhancement because the presentence
report cites U.S.S.G. § 3B1.1(c), which provides for a two point
enhancement, rather than subsection (b), which provides for a three
point enhancement. However, the citation of subsection (c) in the pre-
sentence report is evidently nothing more than a clerical error, and the
sentencing hearing makes clear that Johnson, the prosecution, and the
court were aware that the presentence report called for a three point
enhancement. J.A. at 772, 776. In fact, Johnson's written objection to
the presentence report refers to the "three-point upward adjustment,"
and the "Addendum to the Presentence Report" correctly cites
U.S.S.G. § 3B1.1(b). J.A. at 814, 817.

Bruce's argument that he was not an "organizer or leader" of the
criminal activity under U.S.S.G. § 3B1.1(a) is particularly far-fetched.
Considerable trial testimony established that Bruce was the leader of
an extensive organization that made weekly trips to the Washington,
D.C., area to obtain cocaine and cocaine base. See, e.g., 678-82. For
example, Tracy Johnson testified that Bruce employed her as a runner
and that Bruce delivered crack cocaine to Jeffrey Johnson and
directed him to resell it. J.A. at 595, 598. Additionally, Bruce directed
security efforts, including strip searches and the posting of lookouts.
See, e.g., J.A. at 433, 488, 657-58, 761.

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IV.

Johnson and Bruce challenge the sufficiency of the evidence for the
jury's verdict on the conspiracy and substantive drug distribution
counts. However, a rational trier of fact could easily find Johnson and
Bruce guilty beyond a reasonable doubt on these charges. The con-
spiracy charge was proven by, among other things, the cooking of
cocaine in Helen Harrison's kitchen. Johnson cooked powder cocaine
into crack while Bruce, as discussed above, sat at the kitchen table
surrounded by bags of cocaine and crack cocaine. J.A. at 477-82. This
is further supported by the evidence, discussed above, regarding John-
son's role as a "manager or supervisor" in the drug-distribution orga-
nization and Bruce's role as its "organizer or leader." Appellants' only
argument regarding the sufficiency of the evidence for the substantive
drug distribution convictions is that the testimony of Lingenfelter and
Tracy Johnson was inherently unreliable. However,"[t]he credibility
of witnesses is a matter solely within the provence of the jury, and is
not reviewable by this court." Pigford v. United States, 518 F.2d 831,
836 (4th Cir. 1975).

V.

Bruce also challenges his 18 U.S.C. § 924(c) conviction, arguing
that there was insufficient evidence to prove either that he "use[d] or
carrie[d]" a firearm or that he did so "during and in relation to" a drug
trafficking crime. The § 924(c) conviction arose from a videotaped
incident in which Bruce offered to exchange drugs and money for a
machine-gun. Confidential informant David L. Hines testified that he
met Bruce in a hotel room, where Bruce searched the room, covered
the smoke detector, and strip searched Hines. J.A. at 431-33. In the
course of negotiating with Hines regarding the amount of money and
drugs he would give for the gun, Bruce picked up and examined the
M-16 using a bedsheet. J.A. at 433-34. Bruce and Hines then moved
out to the parking lot, where Bruce showed Hines cocaine and crack
cocaine together with a Tech-9 firearm in his car. J.A. at 436-42.
Bruce told Hines, "I've got the dope and I've got the cash, now, you
bring the gun out here and we can do a deal." J.A. at 436. Negotia-
tions broke off without completion of the transaction.

Under our circuit's precedent, the exchange of drugs for a firearm
constitutes "use" of the firearm under § 924(c)(1). United States v.

                     6
Harris, 39 F.3d 1262, 1269 (4th Cir. 1994); see also United States v.
Zuniga, 18 F.3d 1254, 1259 (5th Cir. 1994) (same). In a case not cited
by either Bruce or the United States, defendant Reginald Boone gave
Napoleon Yarn money and drugs in payment for Yarn to procure a
shotgun for Boone. Harris, 39 F.3d at 1269. We held that this
exchange or barter of cocaine for the mere "service" of obtaining a
shotgun was sufficient for § 924(c) purposes, id., and we subse-
quently held that the validity of Boone's conviction was unaffected
by the Supreme Court's decision in Bailey v. United States, 116 S. Ct.
501 (1995). United States v. Boone, No. 95-5055 (4th Cir., Aug. 16,
1996) (unpublished); see also United States v. Ulloa, 94 F.3d 949,
956 (5th Cir. 1996) (reaffirming Zuniga, supra, in light of Bailey).

The evidence supporting the § 924(c) conviction is considerably
stronger here than in Harris, because Bruce negotiated directly with
the possessor of the gun, rather than through a middle-man, and
because Bruce physically handled the gun for valuation purposes in
the course of negotiating over the drugs-for-gun exchange. According
to the Supreme Court, a gun can be "used" as"an item of barter" even
if the proposed drug transaction is not consummated. Smith v. United
States, 508 U.S. 223, 226, 229 (1993) (holding that the proposed
exchange of a gun for narcotics constitutes "use" under § 924(c)).
Therefore, under all of the circumstances, Bruce"used" the firearm
under § 924(c).

There can be no doubt that this use was "during and in relation to"
the predicate drug trafficking offenses of possession of cocaine with
intent to distribute and the ongoing conspiracy to possess with intent
to distribute crack cocaine. Given our circuit precedent, we have little
trouble deciding that Bruce "used" a firearm"during and in relation
to" a drug trafficking offense.

VI.

The district court clearly did not commit reversible error in ques-
tioning prosecution witness Benny Paul in front of the jury regarding
Paul's concerns about being jailed with Bruce. The district court's
alleged error occurred in response to Paul's testimony that he was
afraid of Bruce, J.A. at 557-61, and that Bruce made statements about
finding out who were the "snitches," J.A. at 561. The district court,

                    7
however, merely asked Paul whether he wanted to be moved from the
Orange County Jail, and Paul responded "I would like to be moved."
J.A. at 561. Although Bruce did not object to this question during the
trial, he now argues on appeal that the district court's question consti-
tuted an impermissible comment on the evidence.

The essence of Bruce's challenge is that the court's question could
leave the jury with the impression that the court believed Paul's testi-
mony. However, the court's concern for Paul's safety in no way indi-
cates that the court considered Paul's testimony credible. Rather, the
court most likely was concerned that the mere fact that Paul testified
that he had seen Bruce with crack cocaine, had seen him involved in
a shoot-out, and had seen him with weapons on many occasions,
could jeopardize Paul's safety, regardless of whether the court found
any of Paul's testimony to be credible. Furthermore, there is no rea-
son to believe that the court's question regarding whether Paul wished
to be transferred to another jail in any way prejudiced Bruce.

VII.

Bruce argues for the first time on appeal that the government
engaged in sentencing entrapment or sentencing manipulation by
allegedly introducing narcotics into the negotiations over the sale of
the gun to Bruce in order to obtain the 18 U.S.C.§ 924(c) conviction
and thereby enhance Bruce's sentence. However, drugs were not
injected into the deal merely for sentencing purposes, as Bruce
alleges: The drugs were at the core of the deal. Furthermore, Bruce's
predisposition toward the use of drugs for the procurement of the gun
is evidenced by Willie Scott's testimony that Bruce told him prior to
the meeting at the hotel that he intended to trade drugs or money for
the gun, J.A. at 689, and by the fact that Bruce brought drugs to the
motel and displayed them to the informant in the parking lot.

VIII.

Finally, appellants have failed to establish that the district court
abused its discretion by allowing the introduction of testimony
regarding drug involvement and firearms not mentioned in the indict-
ment.

                     8
Appellants first assert that evidence of a shoot-out on Kelly Street
was extrinsic evidence. This evidence, however, to which there was
no objection at trial, is clearly relevant to the conspiracy charge.
Benny Paul and Cory Dark testified that the shootout was part of a
competition between drug distribution organizations. J.A. at 531-34,
573-74. Furthermore, the conspiracy indictment alleged that
"[m]embers of the conspiracy were involved in several shootings dur-
ing the course of the conspiracy, to settle disputes with rival crack
dealers, and to settle disputes within the conspiracy itself." J.A. at 24.

Second, Bruce asserts that Lingenfelter testified that he purchased
cocaine from Bruce prior to the start of the conspiracy. However, Lin-
genfelter's testimony regarding his purchases from Bruce on
"[s]everal occasions" prior to becoming an informant for the police in
no way establishes that these purchases were prior to the start of the
conspiracy. J.A. at 313.

Third, appellants object for the first time on appeal to the testimony
of Tracy Johnson regarding her drug involvement with Bruce during
the 1980s. However, the prosecution specifically asked Johnson about
her drug dealings with Bruce during 1993-1994, the time of the
charged conspiracy. J.A. at 594. Johnson's statement that she "knew
Rob back in the 80s" is neither evidence of prior acts nor prejudicial
to Bruce. J.A. at 595.

Fourth, appellants allege that trial testimony referred to firearms
that were used, carried and displayed during the conspiracy but that
were not specifically mentioned in the indictments. These guns,
though not themselves mentioned in the indictment, were part of the
conspiracy conduct charged in the indictment.

CONCLUSION

For the reasons stated herein, we affirm the judgment of the district
court.

AFFIRMED

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