United States of America v.  Russell Owen McIntosh

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4529 
RUSSELL OWEN MCINTOSH,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4530 
JUSTIN JAMEL MCDONALD, a/k/a JJ,
Defendant-Appellant. 
Appeals from the United States District Court
for the Western District of North Carolina, at Statesville.
Charles H. Haden II, Chief District Judge, sitting by designation.
(CR-99-71-H)
Submitted: June 26, 2002
Decided: July 22, 2002
Before WILKINS, LUTTIG, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Leslie Carter Rawls, Charlotte, North Carolina; Richard A. Culler,
CULLER & CULLER, P.A., Charlotte, North Carolina, for Appel-

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lants. Gretchen C.F. Shappert, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Russell Owen McIntosh and Justin Jamel McDonald appeal from
their convictions and sentences for conspiracy to possess with intent
to distribute cocaine and cocaine base in violation of 21 U.S.C.A.
§§ 846, 841(b)(1) (West 1999 & Supp. 2002). McIntosh was also con-
victed of conspiracy to possess firearms during and in relation to a
drug trafficking offense in violation of 18 U.S.C.A. § 924(c) (West
2000). Finding no error, we affirm.
Defendants first contend that the evidence—both as to the conspir-
acy and as to the amount of cocaine base—was insufficient to support
their convictions. However, we find that, viewing the evidence and all
reasonable inferences therefrom in the light most favorable to the
government, the evidence was sufficient to support the verdict. United
States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982); see United
States v. Arrington, 719 F.2d 701, 704 (4th Cir. 1983).
The evidence presented during the trial showed that McIntosh and
McDonald were members of a loose-knit conspiracy of drug dealers
who distributed crack cocaine in the Mindon Place area of Statesville,
North Carolina. See United States v. Banks, 10 F.3d 1044 (4th Cir.
1993) (discussing loose-knit conspiracies). Other members of the con-
spiracy testified regarding McIntosh’s and McDonald’s involvement
and supplied information about the amounts of drugs each Defendant
was responsible for during the course of the conspiracy. Construing
this evidence and all reasonable inferences in the light most favorable
to the government, see Tresvant, 677 F.2d at 1021, we find that the
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record supports the jury verdict that both Defendants were responsible
for less than 500 grams of cocaine and 50 grams or more of cocaine
base.
Next, the Defendants challenge the sentencing court’s determina-
tion of the amount of cocaine base attributed to them for sentencing
purposes. Each co-conspirator may be held accountable for all drug
quantities attributable to the conspiracy that were reasonably foresee-
able to him and within the scope of his agreement. United States v.
Gilliam, 987 F.2d 1009, 1012-13 (4th Cir. 1993). The trial evidence
showed that, on a daily basis and for several years, McIntosh and
McDonald operated as partners in selling crack. The sentencing court
found that the amount of cocaine base attributable and reasonably
foreseeable to McDonald was 150 to 500 grams. The court also attri-
buted 150 to 500 grams of cocaine base to McIntosh. These quantities
were supported by testimony presented at trial. We find no clear error
in the district court’s finding that at least 150 grams of cocaine base
were foreseeable to each Defendant. See United States v. D’Anjou, 16
F.3d 604, 614 (4th Cir. 1994) (providing standard).
Lastly, McIntosh and McDonald argue that the district court erred
in denying their motion for a new trial based on allegations of collu-
sion by the government’s witnesses while housed together during the
trial. To have newly discovered evidence considered the defendant
must show that: (1) the evidence is newly discovered; (2) the defen-
dant used due diligence; (3) the evidence is not merely cumulative or
impeaching; (4) the evidence is material; and (5) the evidence proba-
bly would result in an acquittal at a new trial. See United States v.
Chavis, 880 F.2d 788, 793 (4th Cir. 1989). We agree with the district
court that McIntosh and McDonald failed to meet this standard.
The proffered "evidence" of witness collusion could have been dis-
covered previously with the exercise of due diligence. See United
States v. Bales, 813 F.2d 1289, 1295 (4th Cir. 1987). Both Defen-
dants’ attorneys were familiar with the federal practice of housing
federal witnesses together during a trial. Although both attorneys con-
ducted extensive cross-examination of the witnesses, neither asked
about potential violations of the sequestration order. Additionally,
counsel had access to reports of the witnesses’ pre-trial interviews.
Had one of the witnesses altered his testimony to conform to that of
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the other witnesses, counsel would have been able to discover this
alteration during the trial, and could have impeached the witness
based on the prior statements. However, neither at trial, nor in the
motion for a new trial, did counsel for the Defendants point to any
instance in which a witness’ testimony was inconsistent with his prior
statement.
Because Defendants failed to demonstrate any alteration of testi-
mony in support of their claim of witness collusion, the "newly dis-
covered evidence" on which they premised the motion for a new trial
was not material. See Chavis, 880 F.2d at 793. Moreover, as the dis-
trict court noted, even if there were an alteration in a witness’ testi-
mony, the proffered evidence of witness collusion would amount
primarily to an attack on the credibility of the government’s wit-
nesses. Impeachment evidence is not sufficient to warrant a new trial.
Id.; see United States v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1993).
Because McIntosh and McDonald failed to meet the five prerequi-
sites to the granting of a motion for a new trial based on newly dis-
covered evidence, we find that the district court did not abuse its
discretion in denying the motion. See United States v. Christy, 3 F.3d
765, 768 (4th Cir. 1993) (providing standard).
In conclusion, we affirm the Defendants’ convictions and sen-
tences. 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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