United States of America v.  Kenneth Roshaun Reid

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-4826 
KENNETH ROSHAUN REID,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Cameron McGowan Currie, District Judge.
(0:04-cr-00353-CMC)
Argued: February 1, 2008
Decided: April 16, 2008
Before MICHAEL and SHEDD, Circuit Judges,
and Liam O’GRADY, United States District Judge for the Eastern
District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Shedd wrote the opinion, in
which Judge Michael and Judge O’Grady joined.
COUNSEL
ARGUED: David Bruce Betts, Columbia, South Carolina, for Appel-
lant. Mark C. Moore, OFFICE OF THE UNITED STATES ATTOR-
NEY, Columbia, South Carolina, for Appellee. ON BRIEF: Reginald
I. Lloyd, United States Attorney, Columbia, South Carolina, for
Appellee.

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OPINION
SHEDD, Circuit Judge:
Kenneth Roshaun Reid appeals from his convictions for conspiracy
to distribute cocaine base and murder through the use of a firearm in
the course of a drug trafficking crime. Although we conclude that the
district court erred in instructing the jury on the conspiracy charge,
Reid has failed to demonstrate that the error affected his substantial
rights. For this reason and because we conclude that substantial evi-
dence supports both convictions, we affirm.
I
Reid and co-defendants Patrick Ray Simpson and Samuel Larell
Anderson were charged in a 14-count superseding indictment (the
"Indictment") with various violations of federal drug and firearms
laws. Pertinent to this appeal, Count 1 charged all three defendants
with conspiracy to "possess with intent to distribute and to distribute
50 grams or more of cocaine base (commonly known as ‘crack’
cocaine)" in violation of 21 U.S.C. §§ 841 and 846. Count 4 charged
all three defendants with the murder of police informant Ernest "Dun-
ther" Hollis, in violation of 18 U.S.C. § 924(j). Simpson and Ander-
son reached plea agreements with the government and testified
against Reid at trial.
Viewed in the light most favorable to the government, the evidence
at trial established that Reid was a longtime dealer of crack cocaine
in the areas of Fort Mill and Rock Hill, South Carolina. Beginning in
the 1990s, Reid repeatedly purchased as much as one-half kilogram
of cocaine from various suppliers which he converted into crack for
sales on the street. Reid also purchased crack directly from his suppli-
ers for resale. Reid supplied crack to a number of repeat customers.
Dennis Watts bought crack from Reid "seven to eight" times a week.
Beginning in the Spring of 2003, Donald Hill purchased 2-3 ounces
of crack each week from Reid for approximately six months. Many
of Reid’s customers were themselves dealers who re-sold the drugs
supplied by Reid. Anderson purchased "8 balls or quarter ounces" of
crack from Reid "well over 50 times" in one five-month period, dur-
ing which he lived with Reid’s mother and grandmother and sold
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crack from their yard. Simpson purchased ounce quantities of crack
from Reid for resale more than twenty times.
Reid relied on numerous friends and associates to maintain his drug
supply. In 2003, Reid sought out his friend Tommie Watts for help
locating a new cocaine supplier. Watts began purchasing cocaine for
Reid, which Reid then converted into crack for resale, and eventually
Watts introduced Reid to his supplier. Reid also purchased cocaine
from Simpson after Simpson relocated to Texas and established a
relationship with a cocaine supplier there.
In early 2003, Hollis, a drug dealer and past customer of Reid’s,
began cooperating with the FBI and local authorities in an effort to
"work off" drug charges against him. In April, Hollis made a con-
trolled purchase of one ounce of crack from Reid, which was recorded
on audiotape. Reid was arrested in September, and a Hi-Point pistol
was recovered from his vehicle.
Following his arrest, Reid indicated to Anderson that he believed
Hollis was the informant who had "set him up" and stated that if Hol-
lis did not show up to testify against him, the police would "have no
case." Noting that Anderson was with Reid on the night of Hollis’s
controlled purchase, Reid told Anderson that he might be implicated
as well and asked for his help to murder Hollis. Anderson agreed and
drove Reid to Hollis’s apartment on several occasions to look for Hol-
lis. Meanwhile, Reid attempted to find someone else to handle the
murder itself, and after making one unsuccessful solicitation, Reid
recruited Simpson, who agreed to kill Hollis.
On September 28, 2003, Reid, Anderson, and Simpson drove to the
Catawba Pointe apartments, where Hollis’s girlfriend lived. With
Reid waiting in their car, Anderson and Simpson went to the apart-
ment, knocked on the door, and spoke to Hollis. Simpson then pulled
a gun and shot Hollis, who died at the scene. After the murder, Reid,
Anderson, and Simpson drove to Charlotte, North Carolina, where
Reid disposed of the murder weapon and attempted to establish an
alibi. Anderson continued to purchase crack from Reid for resale until
his arrest the following month.
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At trial, Reid was convicted on Counts 1 and 4.1 Reid moved for
judgment of acquittal under Fed. R. Crim. P. 29, which the district
court denied. The district court sentenced Reid to 240 months’ impris-
onment on Count 1, and life imprisonment on Count 4. Reid now
appeals.
II
Reid first contends that his convictions on Counts 1 and 4 must be
reversed. He argues that because the district court’s instructions
authorized conviction on Count 1 only if the jury also concluded that
the drug conspiracy involved the amounts of either 50 or more grams
of crack or 5 or more grams of crack, the jury’s failure to find either
of those amounts constitutes an acquittal. Reid also argues that
because a conviction on Count 1 was a predicate to conviction on
Count 4, his conviction on Count 4 must be reversed as well. We
reject Reid’s arguments.
A.
At trial, the district court, the government, and the defense
expended considerable energy attempting to agree on the proper man-
ner in which to charge the jury in light of our decision in United
States v. Collins, 415 F.3d 304 (4th Cir. 2005). In Collins, we held
that for purposes of determining a sentence under 21 U.S.C. § 841(b),
the quantity of drugs attributable to a defendant convicted of conspir-
acy to violate § 841(a) must be found by the jury using the principles
of co-conspirator liability set forth in Pinkerton v. United States, 328
U.S. 640 (1946).2 Collins followed our decision in United States v.
1Reid was also convicted on counts 12 and 14 of the Indictment for
unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(3),
but does not appeal these convictions. Reid was acquitted on Counts 2,
3, 11, and 13. Counts 9 and 10 were dismissed by the government prior
to trial.
2The relevant conspiracy statute is 21 U.S.C. § 846, which provides
that "[a]ny person who attempts or conspires to commit any offense
defined in this subchapter shall be subject to the same penalties as those
prescribed for the offense, the commission of which was the object of the
attempt or conspiracy." Count 1 charged Reid with conspiracy to violate
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Promise, 255 F.3d 150 (4th Cir. 2001) (en banc), in which we held
that under Apprendi v. New Jersey, 530 U.S. 466 (2000), the maxi-
mum sentence that may be imposed upon a defendant convicted of
violating § 841(a) in the absence of a jury finding of a threshold drug
quantity that would trigger the enhanced penalty provisions of
§ 841(b)(1)(A) or § 841(b)(1)(B) is 20 years, as provided in
§ 841(b)(1)(C).
Attempting to apply these principles, the district court submitted to
the jury the question of the quantity of drugs involved in the conspir-
acy, instructing:
In order to establish the offense of conspiracy as to the
defendant, the government must prove beyond a reasonable
doubt each of the following: One, that the conspiracy
described in the Indictment was willfully formed and existed
beginning at least in early 2000, and continued thereafter up
to and including the date of the Indictment; and, two, that
the defendant willfully became a member of the conspiracy;
and, three, that the conspiracy involved 50 grams or more
of cocaine base, commonly known as crack cocaine . . . or
the lesser included amount of five grams or more of cocaine
base, commonly known as crack cocaine.
J.A. 959-60. The district court also provided the jury with a special
verdict form containing three questions concerning Count 1. The first
asked whether the jury found Reid "guilty of conspiracy to possess
§ 841(a)(1), which makes it a crime to intentionally "manufacture, dis-
tribute, or dispense, or possess with the intent to manufacture, distribute,
or dispense, a controlled substance." Section 841(b) establishes the pen-
alties for violations of § 841(a). Section 841(b)(1)(A) provides for a
minimum sentence of 10 years’ imprisonment for individuals found
guilty under § 841(a) of offenses involving 50 grams or more of cocaine
base. Section 841(b)(1)(B) mandates a five-year minimum sentence for
offenses involving 5 grams or more of cocaine base. Section
841(b)(1)(C) prescribes a penalty of not more than 20 years’ imprison-
ment for violations of § 841(a) involving less than five grams, or an
unspecified amount, of cocaine base.
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with intent to distribute and to distribute cocaine base (commonly
known as ‘crack cocaine’)." The jury answered "yes" to this question.
The second and third questions on the special verdict form gave the
jury two options relating to the amount of crack involved in the con-
spiracy, asking whether the jury found that the conspiracy involved
50 grams or more of crack, or the lesser amount of 5 or more grams
of crack. The jury answered "no" to both of these questions, making
no finding as to the quantity of crack involved.
Upon receipt of the jury’s verdict, the district court recognized a
possible inconsistency and brought it to the parties’ attention. The dis-
trict court suggested submitting special interrogatories that would ask
if the jury found that the conspiracy involved fewer than 5 grams, or
an unspecified amount, of crack. After discussing the matter, how-
ever, the district court, the government, and counsel for Reid all
agreed that no special interrogatories were necessary. All agreed that
the jury had returned a guilty verdict as to Count 1 in the "default
position," and that the significance of the jury’s failure to find any
specific drug quantity was that Reid could not be subjected to a pun-
ishment beyond the maximum of 20 years provided for in
§ 841(b)(1)(C).
B.
On appeal, Reid now contends that the jury’s failure to find any
drug quantity requires reversal of his conviction on Count 1 because
the district court’s instructions permitted the jury to convict him only
if it concluded that the conspiracy involved the threshold amounts of
50 or more, or 5 or more, grams of crack. Because Reid did not raise
this argument below, our review is for plain error. United States v.
Evans, 416 F.3d 298, 300 (4th Cir. 2005). To establish plain error,
Reid must show that an error occurred, that the error was plain, and
that the error affected his substantial rights. United States v. Olano,
507 U.S. 725, 732 (1993). Even if Reid makes this threshold showing,
Fed. R. Crim. P. 52(b) leaves the decision to correct the forfeited error
within the sound discretion of the court of appeals. See id. at 735-36.
We conclude that the district court erred in instructing the jury that
it could convict Reid on Count 1 only if it also found that the drug
conspiracy involved specified quantities of crack. As we explained in
Collins, "[g]uilt of the substantive offense defined in § 841(a) is not
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dependent upon a determination of the amount or type of narcotics
distributed." 415 F.3d at 314. Rather, in order to obtain a conviction
on Count 1, the government was required to prove that (1) an agree-
ment to possess cocaine with intent to distribute existed between two
or more persons; (2) Reid knew of the conspiracy; and (3) Reid know-
ingly and voluntarily became a part of this conspiracy. United States
v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc). In instructing
the jury that a specific drug quantity was an element of conviction
under § 841(a), the district court misstated the law and heightened the
government’s burden of proof.
We must next determine whether the error was plain. To be plain,
an error must be "clear" or "obvious." Olano, 507 U.S. at 734. An
error is clear or obvious "when the settled law of the Supreme Court
or this circuit establishes that an error has occurred." Promise, 255
F.3d at 160 (internal citations omitted). In light of our clear statement
in Collins that a jury finding as to drug quantity is not required for
conviction under § 841(a), we conclude that the district court’s error
was plain.
We cannot conclude, however, that the error affected Reid’s sub-
stantial rights. In order for Reid to demonstrate that the error affected
his substantial rights, he must show that it was prejudicial; that is, that
it "actually affected the outcome of the proceedings." Id. (internal
quotation and citations omitted). To determine if Reid can make this
showing, we must first determine whether the error lies in Reid’s sen-
tence or in his conviction. See id. Unsurprisingly, Reid argues that the
error is in his conviction, and that in light of the district court’s
instructions, the jury’s findings constituted an acquittal as to Count 1.
We addressed a similar issue in Collins, where we concluded that
the district court erred by failing to give the jury a supplemental
instruction necessary to permit it to determine which penalty subsec-
tion in § 841(b) applied to the defendant. Collins, 415 F.3d at 312-13.
As we explained, however, that error affected only the applicability
of the heightened penalty provisions of § 841(b)(1)(A) or (b)(1)(B),
and thus only the sentence the defendant was eligible to receive. Id.
at 314.
Likewise in this case, the district court’s erroneous instructions do
not affect the validity of Reid’s conviction on Count 1, but only
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whether he was eligible to receive a sentence beyond the statutory
maximum that applies in the absence of a jury finding of specific drug
quantities. Without such a finding, Reid could not have been sen-
tenced to the harsher penalties prescribed by § 841(b)(1)(A) or
§ 841(b)(1)(B), but only under the 0 to 20 year range provided for in
§ 841(b)(1)(C). Because Reid did not receive a heightened sentence
under § 841(b)(1)(A) or (b)(1)(B), but rather a 20-year sentence under
§ 841(b)(1)(C), his substantial rights were not affected.
Moreover, even if Reid could demonstrate that the error affected
his substantial rights, we would decline to notice it here. Our discre-
tion to notice plain error "is appropriately exercised only when failure
to do so would result in a miscarriage of justice, such as when the
defendant is actually innocent or the error seriously affects the fair-
ness, integrity or public reputation of judicial proceedings." United
States v. Hastings, 134 F.3d 235, 244 (4th Cir. 1998) (internal quota-
tion and citation omitted). "Central to this inquiry is a determination
of whether, based on the record in its entirety, the proceedings against
the accused resulted in a fair and reliable determination of guilt."
United States v. Cedelle, 89 F.3d 181, 186 (4th Cir. 1996).
We have no difficulty concluding that Reid’s trial resulted in a "fair
and reliable determination of guilt," and that reversal of Reid’s con-
victions would be an inappropriate exercise of our discretion. View-
ing the record as a whole, it is clear that the evidence against Reid
was overwhelming. Witness after witness testified to Reid’s involve-
ment in the purchase and sale of large quantities of crack and in Hol-
lis’s murder. Moreover, Reid’s trial counsel — likely recognizing that
the jury’s apparent lack of unanimity concerning the quantity of drugs
involved in the conspiracy would result in a lower sentence for Reid
— was quick to concede the validity of the guilty verdict on Count
1. Accordingly, reversal of Reid’s convictions would itself be a mis-
carriage of justice, and we refuse Reid’s invitation to do so.
III
Reid next argues that the district court erred in denying his motion
for acquittal as to Counts 1 and 4. We review de novo the district
court’s ruling on a motion for judgment of acquittal and we will
uphold the verdict if, viewing the evidence in the light most favorable
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to the government, it is supported by substantial evidence. United
States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). Substantial evi-
dence is "evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s guilt
beyond a reasonable doubt." Id. (internal quotation and citation omit-
ted).
A.
As to Count 1, Reid argues that the evidence was insufficient to
support his conviction because it established no more than a
buyer/seller relationship between himself and others. As we have
explained, in order to prove the conspiracy charged in Count 1, the
government was required to establish (1) an agreement to possess
with intent to distribute cocaine base existed between two or more
persons; (2) Reid knew of the conspiracy; and (3) Reid knowingly
and voluntarily became part of the conspiracy. Burgos, 94 F.3d at
857. Evidence of a "buy-sell transaction . . . coupled with a substan-
tial quantity of drugs, would support a reasonable inference that the
parties were coconspirators." United States v. Mills, 995 F.2d 480,
485 n.1 (4th Cir. 1993). Likewise, evidence of continuing relation-
ships and repeated transactions can support the finding that there was
a conspiracy, especially when coupled with substantial quantities of
drugs. Burgos, 94 F.3d at 858.
We conclude that Reid’s argument is without merit. At trial, sev-
eral witnesses testified to Reid’s involvement in the purchase of sub-
stantial quantities of crack. For example, Latorrence Singletary
testified that he and Reid would split the cost of a "big eight" (4.5
ounces of powder cocaine) from a New York supplier, which Reid
would cook into crack for both of them to sell. Isaiah Robinson and
Bobby Wilson testified to selling crack to Reid or with Reid on multi-
ple occasions. Hydell Harris testified to helping Reid find a new sup-
plier of cocaine in 2002 and arranging two nine-ounce purchases for
Reid in 2003. The testimony of Watts, Hill, Anderson, and Simpson
permitted the jury to conclude that Reid supplied a group of repeat
customers, at least some of whom re-sold the drugs they had pur-
chased from Reid. Together, this evidence demonstrated that Reid had
established relationships with both sellers and buyers and engaged in
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repeated transactions involving substantial quantities of drugs, and is
thus sufficient to sustain the jury’s verdict.
B.
Reid also argues that there was no substantial evidence to support
his conviction on Count 4, which charged Reid with murdering Hollis
with a firearm in violation of 18 U.S.C. § 924(j)(1).3 In order to obtain
a conviction on Count 4, the government was required to prove that
(1) Reid was guilty of the drug conspiracy charged in Count 1; (2)
during and in relation to that underlying conspiracy Reid used or car-
ried a firearm, or in furtherance of that conspiracy, possessed a fire-
arm; and (3) that Reid used the firearm to murder Hollis (or aided and
abetted another in doing so). See United States v. Foster, 507 F.3d
233, 245 (4th Cir. 2007).
Reid argues that his conviction on Count 4 must be reversed
because the government failed to prove that the firearm used to kill
Hollis was used or carried "in relation to" or "in furtherance of" the
drug conspiracy alleged in Count 1, as required by 18 U.S.C.
§ 924(c). We have previously explained that the "in relation to"
requirement is to be construed liberally, and is satisfied by proof that
the "firearm has some purpose or effect with respect to the drug traf-
ficking crime. The gun at least must facilitate or have the potential of
facilitating the drug trafficking offense." United States v. Lipford, 203
F.3d 259, 266 (4th Cir. 2000) (internal quotations and citations omit-
318 U.S.C. § 924(j)(1) provides:
(j) A person who, in the course of a violation of subsection (c),
causes the death of a person through the use of a firearm, shall—
(1) if the killing is a murder (as defined in section 1111), be pun-
ished by death or by imprisonment for any term of years or for
life;
Subsection (c)(1)(A) makes § 924’s penalty provisions applicable to "any
person who, during and in relation to any crime of violence or drug traf-
ficking crime . . . uses or carries a firearm, or who, in furtherance of any
such crime, possesses a firearm." Section 924(c)(2) defines "drug traf-
ficking crime" to include "any felony punishable under the Controlled
Substances Act (21 U.S.C. 801 et seq.)."
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ted). Although this requirement is not satisfied if the presence of a
firearm is "the result of accident or coincidence . . . it is enough for
§ 924(c)(1) purposes if the firearm was present for protection or to
embolden the actor." Id. (internal quotations and citations omitted).
Under this standard, Reid’s argument must fail. The testimony at
trial indicated that Reid wanted Hollis murdered because Hollis had
participated in controlled drug buys leading to Reid’s arrest and pros-
ecution. Reid stated that if Hollis did not testify, the police would
"have no case" and that he wanted to stop Hollis from going to court.
Reid recruited Anderson and Simpson, with whom he had engaged in
numerous drug transactions, to carry out the murder. Following Hol-
lis’s murder, Reid continued to sell drugs to Anderson. Taken
together, this evidence was sufficient for the jury to conclude that the
murder weapon was carried "in relation to" or "in furtherance of" the
ongoing drug conspiracy involving Reid because it had at least the
potential to facilitate that conspiracy. With Hollis dead, Reid was
more likely to escape conviction, and therefore more likely to be able
to continue selling drugs. Accordingly, the district court properly
denied Reid’s Rule 29 motion.
IV
For the foregoing reasons, we affirm Reid’s convictions.
AFFIRMED
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