Federal Circuits, 4th Cir. (November 06, 1989)
Docket number: 88-5104
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http://vlex.com/vid/lynford-george-carey-michael-dacosta-37285675
Id. vLex: VLEX-37285675
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Stephen Jon Cribari, Deputy Federal Public Defender (Fred Warren Bennett, Federal Public Defender, Mary French, Assistant Federal Public Defender, R. Michael Mullens on brief) for appellants.
Thomas Oliver Mucklow, Assistant United States Attorney (William A. Kolibash, United States Attorney, on brief) for appellee.PER CURIAM:Defendants Lynford George Carey and Junior Michael DaCosta appeal their convictions stemming from various cocaine-related charges. For the reasons set forth below, we affirm the the judgments of conviction of the defendants.I.In late 1986, following a major crackdown on drugs by Martinsburg, West Virginia law enforcement officials, indictments were returned for the appellants Carey and DaCosta, charging them with conspiracy to distribute cocaine. Specifically the appellants were charged with one court of conspiracy to distribute and possess with intent to distribute cocaine (21 U.S.C. Sec . 846) [Carey and DaCosta]; twelve counts [Carey] and nine counts [DaCosta] of distribution of cocaine (21 U.S.C. Sec . 841(a)(1)); one count [Carey] and two counts [DaCosta] of possession with intent to distribute cocaine (21 U.S.C. Sec . 841(a)(1)); and one count [Carey] of aiding and abetting interstate travel with intent to carry on a business enterprise involving cocaine (18 U.S.C. Sec . 1952(a)(3) & (2)). In January 1988, Carey was tried on the 15-count indictment. The jury could not reach a verdict, and the judge declared a mistrial.In March 1988, Carey was retired on the same charges; DaCosta, against whom a 12-count indictment had been returned, was Carey's co-defendant. Carey was convicted of all charges. DaCosta was acquitted by the district court on one charge of distribution, found not guilty of two counts of cocaine distribution, and convicted of the remaining nine counts.II.The appellants contend that certain statements made by the prosecutor during his closing argument deprived appellants of a fair trial. Specifically, the appellants contend that the prosecutor repeatedly vouched for the credibility and truthfullness of the government witnesses. During closing argument, however, neither defense counsel nor the district judge protested these comments. Thus, this court reviews these comments under the "plain error" standard. United States v. Young, 470 U.S. 1, 6 (1985).Appellants rely on United States v. Samad, 754 F.2d 1091, 1099-1100 (4th Cir.1984), and United States v. Garza, 608 F.2d 659, 662-63 (5th Cir.1979), to argue that vouching for the credibility of government witnesses is improper. In both of those cases, however, the prosecutors expressed their personal opinions as to the witnesses' credibility. In the present case, the appellants cannot point to any place in the trial where the prosecutor expressed his personal opinion regarding credibility of the witnesses. Instead, the prosecutor focused on the veracity of the witnesses. It is both natural and proper for the prosecutor to highlight the credibility of the witnesses and their respective reasons for telling the truth during the trial. We hold that the prosecutor's comments were not improper, and that the admission of these comments was not plain error.III.The appellants also claim that the district court failed to instruct the jury on an essential element of the crimes charged because it did not instruct the jury that it had to find beyond a reasonable doubt that the substance involved in the charges was cocaine. At trial, however, the appellants did not object to the jury charge proposed by the court, and they did not object after the jury was charged.We find that the appellants' assignment of error is without merit. First, that the substance possessed and distributed was cocaine is not an essential element of conspiracy pursuant to 21 U.S.C. Sec . 846. See United States v. Bland, 653 F.2d 989, 996 (5th Cir.1981), cert. denied,Try vLex for FREE for 3 days
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