UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 03-4109
IAN ANDRE PERSAUD, a/k/a Mark
Persaud, a/k/a Baby Face Persaud,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4139
DAVID PEREZ GARCIA,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Lyle E. Strom, Senior District Judge.
(CR-01-36-S)
Submitted: December 22, 2003
Decided: February 12, 2004
Before LUTTIG, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
2 UNITED STATES v. PERSAUD
COUNSEL
Christopher C. Fialko, RUDOLF MAHER WIDENHOUSE &
FIALKO, Charlotte, North Carolina; Richard E. Beam, Jr., HUB-
BARD & BEAM, Gastonia, North Carolina, for Appellants. 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Unpublished opinions are not binding precedent in this circuit.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:
Ian Andre Persaud (Appeal No. 03-4109) and David Perez Garcia
(Appeal No. 03-4139) appeal their convictions by jury and sentences
on a charge of conspiracy to possess with intent to distribute cocaine
and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000).
The charges stemmed from their participation in a large scale narcot-
ics operation based out of Las Vegas, Nevada in which large quanti-
ties of cocaine were distributed to individuals in Charlotte and
Greensboro, North Carolina who then cooked the cocaine into cocaine
base for further distribution. The district court found that 21 U.S.C.
§ 851 (2000), applied to Persaud, and sentenced him to life imprison-
ment and a ten-year term of supervised release. The district court sen-
tenced Garcia to 360 months’ imprisonment and ten years of
supervised release.
Persaud first challenges the district court’s limitation of the cross-
examination of the government’s witnesses at trial, in particular,
Shawn Marshall, a co-conspirator, and Agent Gary Cullop.1 Persaud
asserts that his defense theory was that Marshall was testifying falsely
1
He also claims error in the district court’s limitation of examination
of Detectives John Fish and John Sturm.
UNITED STATES v. PERSAUD 3
against him to avoid prosecution for several murders, and in an effort
to reduce his twenty-eight year sentence imposed on a state drug con-
spiracy conviction, and complains the district court’s repeated limita-
tion or prohibition of his cross-examination regarding those murders
and Marshall’s specific efforts to avoid apprehension constitutes
reversible error. Specifically, Persaud asserts that the district court
erred in limiting his attempts to demonstrate to the jury that Marshall
was testifying against Persaud in an effort to curry favor with authori-
ties relative to a murder warrant that had not yet been served on him,
and that the district court should have allowed defense counsel to
question Agent Cullop regarding his attempts to serve the warrant on
Devon Smith, a.k.a. Marshall while he was in federal custody.2
We review for abuse of discretion the district court’s limitations of
a defendant’s cross-examination of government witnesses. United
States v. Turner, 198 F.3d 425, 430 (4th Cir. 1999). Trial courts gen-
erally are given wide latitude to set reasonable limits on cross-
examination to prevent harassment, prejudice, or confusion of the
issues. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
Review of the record reveals that the jury was fully apprized of
Marshall’s numerous aliases, his involvement in several robberies, his
presence at a homicide and violent shooting, his flight from police in
March 2001 including the striking of a policeman’s car, his twenty-
eight year federal prison sentence, his use of false identifications, and
the possibility of a Fed. R. Crim. P. 35 downward departure motion.
Cross-examination of Marshall by defense counsel spanned over two
days and is contained in over 100 pages of trial transcript. Defense
counsel questioned Marshall regarding whether he shot and murdered
two people in New York on New Year’s Eve of 1995. Once Marshall
denied involvement, the district court did not permit defense counsel
to inquire into the details of the homicides, and denied defense coun-
sel’s efforts to elicit testimony as to whether Marshall knew there
2
During an offer of proof, Agent Cullop testified he was prevented
from serving the Abbott murder warrant on Marshall because of a federal
policy and that after Marshall was sentenced to twenty-eight years’
imprisonment and began cooperating with the government, the state
prosecutor dismissed the murder charge against Marshall.
4 UNITED STATES v. PERSAUD
remained an arrest warrant outstanding for his arrest in New York rel-
ative to the murder of Richard Lee Abbott.
A thorough reading of Marshall’s cross-examination demonstrates
that defense counsel was afforded reasonable opportunity to explore
Marshall’s motive for testifying and to demonstrate Marshall’s pro-
pensity to say whatever happens to be in his best interest at the time.
The district court allowed arguments of counsel and even allowed
defense counsel the opportunity to present proffered evidence and tes-
timony on the issue, and his ruling was made after careful consider-
ation.
We find the district court was within its discretion to deny defense
counsel the leeway to pursue details of a murder of which Marshall
had not been convicted, after Marshall denied his involvement in it.
In addition, the district court’s limitation of Agent Cullop’s cross-
examination, based upon the same rationale as its limitation on Mar-
shall’s testimony, was not error, nor was the district court’s limitation
of cross-examination of Detectives Fish and Sturm. There is no show-
ing of abuse of discretion by the district court relative to defense
counsel’s access to witnesses on cross-examination.
Persaud next asserts error in the district court’s denial of his
motions to dismiss the indictment due to lack of proper venue. He
asserts the evidence showed that David Garcia organized the drug
conspiracy in Las Vegas, recruiting drivers and packaging the cocaine
in minivans, delivering the cocaine to various customers, including
Marshall and his partner, Persaud, in Greensboro, as well as to Conde
and Bowman in Charlotte. According to Persaud, the government
lacked venue in the Western District of North Carolina because it
failed to demonstrate that Marshall or Persaud ever dealt drugs with
or conspired with Conde or Bowman.
We review de novo questions of law regarding venue. United
States v. Stewart, 256 F.3d 231, 238 (4th Cir. 2001). 18 U.S.C.
§ 3237(a), expressly provides that a conspiracy offense begun in one
district and completed in another, may be prosecuted "in any district
in which such offense was begun, continued, or completed," and the
defendant need not have been present in the district in which the pros-
UNITED STATES v. PERSAUD 5
ecution is initiated. United States v. Smith, 198 F.3d 377, 382 (4th Cir.
1999).
Here, the government demonstrated that a conspiracy existed and
that overt acts in furtherance of the conspiracy were committed in the
Western District of North Carolina. The supplier and deliverers of the
cocaine, David Garcia, Pavel Gomez, and Ramon Garcia, traveled
regularly between Las Vegas and the two North Carolina distribution
sites—Charlotte and Greensboro. Distributors for the conspiracy,
Bowman and Conde, traveled from Charlotte to Greensboro on sev-
eral occasions facilitating drug deals. Conde identified Persaud as one
of David Garcia’s "connections" in Greensboro who was present
while Marshall cooked the cocaine into crack cocaine, and he linked
the Las Vegas and North Carolina portions of the conspiracy together
when he operated as a translator and money counter for David Garcia
in Greensboro facilitating drug sales.
Contrary to Appellants’ contentions, the government presented suf-
ficient trial evidence linking Conde, Bowman, and David Garcia to
Greensboro and to Persaud and Marshall’s portion of the drug distri-
bution operation. We find that the government satisfied its burden of
proof regarding venue. See Smith, 198 F.3d at 382.
Appellants next assert the district court should have dismissed
Count One of the bill of indictment because 21 U.S.C. § 841 is
facially unconstitutional in light of Apprendi v. New Jersey, 530 U.S.
466 (2000), because § 841 requires that drug quantity findings be
made by a sentencing judge by a preponderance of the evidence rather
than by a jury beyond a reasonable doubt. We review de novo chal-
lenges to the validity or constitutionality of an indictment. United
States v. Bolden, 325 F.3d 471, 490 (4th Cir. 2003).
We previously have considered the constitutionality of § 841 in
light of Apprendi, and found that the statute passes constitutional
muster. United States v. McAllister, 272 F.3d 228, 232 (4th Cir.
2001). We decline to hold otherwise here, and find no error in the dis-
trict court’s refusal to dismiss the indictment on that ground.
Appellants next assert error by the district court in not sentencing
them according to the drug amounts found by the jury as essential ele-
6 UNITED STATES v. PERSAUD
ments of the indicted crimes, contending that the alleged error vio-
lates Apprendi.3 Specifically, the jury was instructed that they were
required to decide whether a specific statutory amount of drugs was
proven beyond a reasonable doubt, and found that Persaud and Garcia
each were responsible for fifty grams or more of cocaine base and
five kilograms or more of cocaine powder. The basis of Appellants’
complaint is that the district judge then made a specific finding at sen-
tencing regarding the amount of drugs actually foreseeable to them,
i.e., 150 kilograms of cocaine and 50 grams of crack cocaine each,
based on a preponderance of the evidence, thus increasing their base
offense levels from thirty-two to thirty-eight months.
This claim has no merit. Apprendi requires only that the threshold
drug quantity be submitted to the jury, which was done here. United
States v. Promise, 255 F.3d 150, 152, 156-57 (4th Cir. 2001) (en
banc), cert. denied, ___ U.S. ___, 122 S. Ct. 2296 (2002). Also, the
jury’s conclusion regarding drug quantity triggered the sentencing
provisions of 21 U.S.C. § 841(b)(1)(A), subjecting Persaud and Gar-
cia to a maximum sentence of life imprisonment. Finally, we have
determined that Apprendi does not apply to a judge’s exercise of sen-
tencing discretion within the statutory range if the sentence does not
exceed the statutory maximum, which in this case it did not. United
States v. Kinter, 235 F.3d 192, 199-200 (4th Cir. 2000); see also Har-
ris v. United States, 536 U.S. 545, 557 (2002); United States v. White,
238 F.3d 537, 541 n.4 (4th Cir. 2001).
Persaud next asserts error in the district court’s enhancement of his
sentence pursuant to 21 U.S.C. § 851, because the two prior felony
drug convictions on which the enhancement was based were not
proven to a jury beyond a reasonable doubt, and the enhancement
increased his statutory penalty from twenty years to life to mandatory
life imprisonment. He does not challenge the sufficiency of the gov-
ernment’s notice of intention to seek enhanced penalties, or the valid-
ity of the prior felony drug convictions. We find the fact that the
felony drug convictions on which the § 851 enhancement was based
3
In failing to make a timely and sufficient Apprendi sentencing objec-
tion in the trial court, Garcia failed to preserve his objection, and we
therefore review his objection for plain error. Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 731-32 (1993).
UNITED STATES v. PERSAUD 7
were not proven to a jury does not render application of the enhance-
ment improper. Almendarez-Torres v. United States, 523 U.S. 224
(1998).
Finally, both Persaud and Garcia challenge the district court’s
denial of their motions for judgment of acquittal, based on sufficiency
of the evidence. We review de novo the district court’s decision to
deny a motion for judgment of acquittal. United States v. Romer, 148
F.3d 359, 364 (4th Cir. 1998). In evaluating the sufficiency of the evi-
dence to support a conviction, the relevant question is whether, view-
ing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the defendant guilty beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). If
there exists substantial evidence to support a verdict, viewing the evi-
dence most favorable to the government, the verdict must be sus-
tained. Glasser v. United States, 315 U.S. 60, 80 (1942).
In resolving issues of substantial evidence, we do not weigh evi-
dence or review witness credibility, and we assume that the jury
resolved all contradictions in testimony in favor of the government.
United States v. Romer, 148 F.3d at 364. Even the uncorroborated tes-
timony of an accomplice may be sufficient to sustain a conviction.
United States v. Burns, 990 F.2d 1426, 1439 (4th Cir. 1993).
In support of their claim of insufficiency of the evidence, Appel-
lants contend that each of the government’s informant witnesses
lacked sufficient credibility to support the jury’s reliance on their tes-
timony, citing their actions as drug users and runners, use of aliases,
and bias based on their efforts to obtain more favorable sentences or
avoid prosecution. We deny Appellants’ request for a credibility eval-
uation of the witnesses. Romer, 148 F.3d at 364.
For the foregoing reasons, we affirm Persaud’s and Garcia’s con-
victions and sentences. 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