United States of America v.  John Jude, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4289 
JOHN JUDE, JR.,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4290 
APRIL M. CLINE,
Defendant-Appellant. 
Appeals from the United States District Court
for the Southern District of West Virginia, at Charleston.
Joseph Robert Goodwin, District Judge.
(CR-00-158)
Submitted: December 26, 2001
Decided: January 10, 2002
Before LUTTIG, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Carl J. Dascoli, Jr., MICHAEL R. CLINE LAW OFFICES, Charles-
ton, West Virginia; Matthew A. Victor, VICTOR, VICTOR & HEL-

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GOE, L.L.P., Charleston, West Virginia, for Appellants. Charles T.
Miller, United States Attorney, Monica K. Schwartz, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
John Jude, Jr., was convicted, after a jury trial, of: conspiracy to
distribute cocaine and oxycodone, 18 U.S.C.A. § 846 (West 1999);
distribution of marijuana, 21 U.S.C.A. § 841(a)(1) (West 1999 &
Supp. 2001); distribution of oxycodone and marijuana, 21 U.S.C.A.
§ 841(a)(1); distribution of oxycodone, 18 U.S.C.A. § 841(a)(1); and
distribution of cocaine, 18 U.S.C.A. § 841(a)(1). Jude was sentenced
to terms of 188 months each for the conspiracy and three of the distri-
bution charges, to run concurrently. He was also sentenced to sixty
months on the marijuana distribution charge, to run concurrently with
the 188-month sentences. April M. Cline was convicted, after a jury
trial, of: conspiracy to distribute cocaine and oxycodone, 18 U.S.C.A.
§ 846; distribution of oxycodone and marijuana, 21 U.S.C.A.
§ 841(a)(1); distribution of oxycodone, 18 U.S.C.A. § 841(a)(1); and
distribution of cocaine, 18 U.S.C.A. § 841(a)(1); and distribution of
cocaine, 18 U.S.C.A. § 841(a)(1). Cline was sentenced to five terms
of ninety-seven months, each to be served concurrently.
On appeal, Jude and Cline aver that they did not receive until the
day of trial exculpatory materials relating to a federal investigation of
improprieties of the West Virginia State Police Laboratory, in viola-
tion of their due process rights. See Giglio v. United States, 405 U.S.
150 (1972); Brady v. Maryland, 373 U.S. 83 (1963). "As long as evi-
dence is disclosed before it is too late for the defendant to make effec-
tive use of it, there is no due process violation." United States v.
Russell, 971 F.2d 1098, 1112 (4th Cir. 1992). Defense counsel were
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granted an opportunity to review the material, and there is no indica-
tion that earlier production would have been of measurable benefit.
Accordingly, we find no violation resulting from the delivery of the
documents on the day of trial.
Defense counsel moved the admission of documents provided by
the Government relating to the investigation of the West Virginia
State Police Laboratory. With the exception of approximately a page
of interrogation notes prepared by the FBI relating to general condi-
tions at the facility, the district court found the material inadmissible
because it was not relevant. None of the excluded evidence was
directly related to the drug evidence introduced by the government.
Our review discloses no abuse of discretion by the district court in its
finding that the proffered materials were not relevant. Russell, 971
F.2d at 1104.
Cline’s ninety-seven month sentence as a result of her single con-
spiracy count and four distribution counts and Jude’s 188 month sen-
tence as a result of his single conspiracy conviction and four
distribution convictions do not offend Apprendi v. New Jersey, 530
U.S. 466 (2000). See United States v. Promise, 255 F.3d 150, 156 n.5
(4th Cir. 2001); United States v. Kinter, 235 F.3d 192, 200-01 (4th
Cir. 2000), cert. denied, ___ U.S. ___, 121 S. Ct. 1393 (2001).
Cline and Jude appeal the application of enhancements for use of
a deadly weapon pursuant to U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (2000), and use of a minor pursuant to USSG § 3B1.4.
Our review does not disclose that the district court erred in the appli-
cation of the enhancement for use of a minor. See United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). We also find that the
district court did not err in finding it was not clearly improbable that
the weapons were connected to the offense. See United States v.
Apple, 915 F.2d 899, 914 (4th Cir. 1990). Jude also appeals the
enhancement of his sentence for obstruction of justice, USSG
§ 3C1.1. We find no error in the district court’s application of this
enhancement based on Jude’s ex-wife’s testimony that Jude threat-
ened her and her children.
Cline’s and Jude’s convictions and sentences are accordingly
affirmed. We dispense with oral argument because the facts and legal
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contentions are adequately presented in the material before the court
and argument would not aid in the decisional process.
AFFIRMED
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