UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4573

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

QUENELL WALTERS,

Defendant - Appellant.

No. 07-4600

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

P. W. FERGUSON, a/k/a P. W., a/k/a Patrick William Ferguson,

Defendant - Appellant.

Appeals from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., Chief District Judge. (3:06-cr-00061-JFA-20; 3:06-cr-00061-JFA-6)

Argued: September 25, 2009 Decided: October 29, 2009

Before NIEMEYER, MICHAEL, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion.

ARGUED: David Bruce Betts, Columbia, South Carolina; James Arthur Brown, LAW OFFICES OF JIM BROWN, PA, Beaufort, South Carolina, for Appellants. Jimmie Ewing, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: James H. Babb, HOWLE & BABB, LLP, Sumter, South Carolina, for Appellant Quenell Walters. W. Walter Wilkins, United States Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

Quenell Walters and P.W. Ferguson appeal their

convictions for (1) conspiring to possess with intent to

distribute and distribute cocaine base and (2) possessing with

intent to distribute and distributing cocaine base. Ferguson

also appeals his mandatory life sentence. Finding no error, we

affirm.

I.

From 2000 until 2005 the Columbia, South Carolina,

Police Department and the FBI ran a joint investigation of drug

activities in the McDuffie Street neighborhood of Columbia.

Drug dealing in the neighborhood was tightly controlled. Only

members of the Bloods street gang or persons who lived or grew

up in the neighborhood could sell drugs there. Any outsider who

attempted to sell drugs in the area was beaten.

Walters was a member of the Bloods gang. Over a two-

month period Nickolas Guild sold at least one hundred grams of

crack to Walters on a street adjoining McDuffie. Walters resold

this crack. Ferguson lived in Loretta Brown’s house on McDuffie

Street. Brown’s house was used as a central gathering spot and

safe haven for drug traffickers. Jerblonski Addison sold crack

to Ferguson on a daily basis over a couple of years; these sales

totaled at least fifty grams. Guild sold at least 50 grams of

crack to Ferguson, and Guild saw Ferguson sell crack on McDuffie

3 Street on a daily basis. Debra Brown, an informant, videotaped

both Walters and Ferguson participating in a crack transaction

on McDuffie Street.

Walters and Ferguson were charged in two counts of a

twenty-eight count indictment returned against twenty-one

individuals by a federal grand jury on January 17, 2006. Count

1 charged both defendants with conspiring to possess with intent

to distribute and distribute fifty grams or more of cocaine

base, in violation of

(a), 841(b)(1)(A), and

846. Counts 16 and 22 charged Ferguson and Walters,

respectively, with possessing with intent to distribute and

distributing a quantity of cocaine base, and in aiding and

abetting, in violation of

(a)(1), 841(b)(1)(C)

and

.

The other nineteen co-conspirators charged in the

indictment pled guilty. Walters and Ferguson were tried

together, and on February 15, 2007, the jury found them guilty

of the counts charged. The district court sentenced Walters to

a mandatory minimum prison term of 240 months and sentenced

Ferguson to a mandatory term of life in prison.

Walters and Ferguson appeal their convictions, and

Ferguson appeals his life sentence.

4 II.

A.

Walters argues that admitting evidence of his

membership in the Bloods street gang violated his First

Amendment right of assembly. Both defendants argue that

allowing testimony about the Bloods street gang was irrelevant

and resulted in unfair prejudice. We review the admission of

this evidence for abuse of discretion. United States v.

Perkins,

(4th Cir. 2006).

The district court did not abuse its discretion in

allowing evidence of Walters’ gang association. The First

Amendment does not bar evidence of a person’s associations when

it provides a link to criminal activity. “Assessing the

probative value of common membership in any particular group,

and weighing any factors counseling against admissibility is a

matter first for the district court’s sound judgment under Rules

401 and 403.” United States v. Abel,

(1984).

The evidence of Walters’ membership in the Bloods gang was

relevant to the conspiracy charge because the gang controlled

the drug activity in the McDuffie Street area. Those who were

not Bloods were not allowed to sell drugs in the area unless

they grew up there or lived there. The district court did not

abuse its discretion in deciding that the probative value of

evidence about Walters’ membership in the gang and the gang’s

5 power of exclusion was not substantially outweighed by the

danger of unfair prejudice. See Fed. R. Evid. 403.

B.

The defendants next challenge the district court’s

refusal to allow them to introduce evidence that no cooperating

government witness took or was required to take a polygraph.

According to the defendants, this ruling violated their

constitutional rights to confront adverse witnesses, to

effective assistance of counsel, and to due process of law.

In this circuit the results of a polygraph are not

admissible to impeach the credibility of a witness. United

States v. Sanchez,

(4th Cir. 1997). If the

results of a polygraph examination cannot be used to impeach a

witness, it follows that the absence of a polygraph cannot be

used for impeachment either. It was not an abuse of discretion

for the district court to disallow evidence that no cooperating

witness took a polygraph test.

C.

The defendants requested a verdict form (or jury

interrogatories) that would have required the jury to make a

specific drug quantity determination as to the overall

conspiracy and as to each defendant. The district court denied

these requests. Instead, the court –- with respect to the

overall conspiracy and each defendant -- submitted

6 interrogatories that allowed the jury to find drug quantity

ranges corresponding to the penalties prescribed in

(b).

The defendants argue that the interrogatories violated

their Sixth Amendment right to a jury trial. Citing Apprendi v.

New Jersey,

(2000), the defendants argue that the

jury should have been permitted to determine specific drug

quantities rather than the ranges specified in the

interrogatories. “We review allegations of a constitutionally

defective jury instruction de novo.” United States v. Stitt,

(4th Cir. 2001). This attack on the

interrogatories has no merit. There is no authority for

requiring the jury to find the exact quantifies of drugs

involved. The drug quantity ranges listed in the

interrogatories properly reflected the same ranges listed in

(b).

D.

Next, the defendants challenge the district court’s

jury instruction on the conspiracy charge. Because this

argument was not raised at trial, our review is for plain error.

United States v. Reid,

(4th Cir. 2008).

The defendants contest the district court’s

instruction that if the jury found both defendants guilty of the

conspiracy charge, then the quantity of cocaine it found

7 attributable to the conspiracy for each defendant had to “match

up, because we are talking about the same conspiracy.” J.A.

746. First, the defendants argue that this served to direct a

verdict on whether the evidence proved a single conspiracy or

multiple conspiracies. This argument fails because there was no

evidence that either defendant’s actions related to a conspiracy

separate from the McDuffie Street conspiracy. A multiple

conspiracy instruction is not required if there is no proof of

multiple conspiracies. See United States v. Nunez,

(4th Cir. 2005). Second, the defendants argue that the

instruction prevented the jury from making an independent

determination of the weight of drugs attributable to each

defendant as a member of the conspiracy. See United States v.

Collins,

(4th Cir. 2005). We disagree. The

district court complied with circuit law in instructing the

jury. The court instructed the jury that it needed to determine

(1) whether “the government has proved beyond a reasonable doubt

that the defendant participated in a conspiracy,” (2) “the

amount of cocaine base that the government has proved beyond a

reasonable doubt is attributable to the entire conspiracy,” and

(3) “the amount of cocaine base that the government proved

beyond a reasonable doubt is attributable to each defendant

found to be a member of the conspiracy himself as an individual

8 member of the conspiracy.” J.A. 731-32. The conspiracy

instruction, taken as a whole, was not erroneous.

E.

Walters claims a Brady and Giglio violation because

the district court refused to require the government to disclose

FBI agent Rodney Crawford’s notes of his interrogation of

Walters. See Brady v. Maryland,

(1963); Giglio v.

United States,

(1972). The 302 report prepared by

Agent Crawford reflected that Walters admitted his membership in

the Bloods gang, and Agent Crawford testified to that effect.

Walters -- through an oral statement made by his counsel --

denied that he had made such an admission to Agent Crawford.

Walters did not offer a sworn denial, nor did he ask the

district court to conduct any in-camera review of Agent

Crawford’s notes. In any case, Walters argues that the notes

should have been made available for impeachment purposes.

To succeed on a Brady claim, the defendant must show

“that prejudice resulted from the suppression.” Vinson v. True,

(4th Cir. 2006). Here, even if it is assumed

that the interview notes should have been produced, Walters has

not shown prejudice. Both Danny Sims and Nickolas Guild

testified that Walters was a member of the Bloods gang. Thus,

Agent Crawford’s testimony that Walters admitted to his

membership in the Bloods gang was cumulative evidence. The

9 district court’s refusal to require the government to turn over

Agent Crawford’s notes of his interrogation of Walters therefore

did not result in any prejudicial error under Brady and Giglio.

F.

Finally, Ferguson argues that his trial counsel was

ineffective for failing to contest the mandatory life sentence

imposed by the district court. The court was required to

sentence Ferguson to a life term if he violated

(b)(1)(A) after having two or more prior felony drug

convictions that had become final.

An ineffective assistance of counsel claim is not

cognizable on direct appeal “unless it conclusively appears from

the record that defense counsel did not provide effective

representation.” United States v. Benton,

(4th Cir. 2008).

Ferguson argues that his trial counsel was ineffective

for: (1) failing to object to the life sentence enhancement or

to request an enhancement hearing; (2) failing to challenge the

district court’s consideration of an uncounseled prior

conviction; (3) failing to argue that Ferguson did not enter

into the § 841 conspiracy after his prior felony drug

convictions became final; and (4) failing to request a jury

determination of the dates of Ferguson’s participation in the

§ 841 conspiracy.

10 Ferguson admits that his 1998 felony drug conviction

was properly considered as a predicate offense. He claims,

however, that his 1999 drug conviction was invalid because he

was not represented by counsel and that his 2002 and 2004 drug

convictions occurred after he was no longer participating in the

§ 841 conspiracy. Thus, he claims that his trial counsel was

ineffective for not challenging the use of these convictions for

enhancement purposes. Two prior felony drug convictions meant a

mandatory life sentence for Ferguson. Because he admits to one

prior conviction, all of his other convictions would have to

have been invalidated as sentence enhancers for his counsel to

have succeeded in challenging the mandatory life sentence.

Therefore, if just one of the other convictions was valid,

Ferguson’s counsel would not have been ineffective for failing

to challenge the enhancement.

With respect to the 1999 conviction, Ferguson points

out that his presentence report (PSR) does not reflect that he

had counsel. The PSR simply quotes a South Carolina statute

stating that indigent defendants are entitled to counsel. Thus,

while we do not know whether Ferguson actually had counsel, we

have no basis to determine that this conviction was definitively

invalid for enhancement purposes due to lack of counsel. As a

result, the record does not conclusively show that Ferguson’s

counsel in this case rendered ineffective assistance in failing

11 to challenge the use of his 1999 conviction. In light of the

1998 conviction and the absence of a showing that the 1999

conviction cannot be counted to enhance Ferguson’s sentence, we

cannot say that “it conclusively appears from the record that

defense counsel did not provide [Ferguson] effective

representation” in failing to challenge the predicate

convictions for the § 841 enhancement. Benton,

.

Ferguson’s ineffective assistance claim must therefore be

rejected in this direct appeal.

III.

For the foregoing reasons, Walters’ and Ferguson’s

convictions and Ferguson’s sentence are

AFFIRMED.

12