Legal Appeal in Drug Case
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2d 1302
Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of
unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Walter R. WEBSTER, a/k/a Gangster, a/k/a Mr. G, a/k/a G,
Defendant-Appellant.
No. 90-6784.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 5, 1990.
Decided Nov. 8, 1990.
Appeal from the United States District Court for the District of Maryland,
at Baltimore. Joseph H. Young, Senior District Judge. (CR-79-60-Y, CA88-3780-Y)
R. Kenneth Mundy, Washington, D.C., for appellant.
Richard Charles Kay, Assistant United States Attorney, Baltimore, Md.,
(Argued), for appellee; Breckinridge L. Willcox, United States Attorney,
Geoffrey R. Garinther, Assistant United States Attorney, Baltimore, Md.,
on brief.
D.Md.
AFFIRMED.
Before WIDENER and CHAPMAN, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
PER CURIAM:
Appellant brought this action under 28 U.S.C. Secs. 1651, 2202 and 2255
seeking to set aside and vacate certain criminal sentences imposed following his
May 1979 convictions of conducting a continuing criminal enterprise in
violation of 21 U.S.C. Sec. 848, conducting the affairs of the enterprise through
a pattern of racketeering in violation of 18 U.S.C. Secs. 1961, 1962(c), and
1963, conspiracy to distribute cocaine and heroin in violation of 21 U.S.C. Sec.
846, 17 counts of illegal use of the telephone in violation of 21 U.S.C. Sec.
843(b) and (c), and three counts of interstate travel in aid of a racketeering
enterprise in violation of 18 U.S.C. Sec. 1952(a)(3). As a part of the conviction
and sentencing order, the district court provided that it would set aside the 17
counts of illegal use of the telephone as having merged into the greater sentence
imposed under Count 2, the conspiracy count. On appeal (United States v.
Webster, 639 F.2d 174 (4th Cir.1981), cert. denied, 456 U.S. 935 (1982)), all
convictions were affirmed except the conspiracy conviction under Count 2. It
appears that the conviction on Count 2 has never been stricken as directed by
our opinion in 1981, and in the present proceeding the district court directed the
record to be corrected and this conviction stricken. However, the district court
denied Webster's further request that the 17 convictions of illegal use of the
telephone be set aside. There is no merit to appellant's claim of error as to these
17 convictions. The district court at sentencing clearly provided that the
telephone convictions would be vacated if the conspiracy count was affirmed.
However, since the conspiracy count was not affirmed, appellant is not entitled
to be relieved of the convictions.
Appellant also attempted to raise challenges to the sufficiency of the evidence
and erroneous jury instructions to his CCE and RICO convictions and claims
that his failure to raise these exceptions on direct appeal was the result of
ineffective assistance of counsel. However, he has failed to make a showing of
cause and actual prejudice as required by United States v. Frady, 456 U.S. 152
(1982). Ineffective assistance of counsel may not be used to establish cause
under the Frady test.
The district court considered the ineffective assistance of counsel claim and
found that appellant had not met the burden imposed by Strickland v.
Washington, 466 U.S. 668 (1984), and we find no error in this ruling.
AFFIRMED.
