United States v. McKoy

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 03-4215

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LAFAYETTE MCKOY, a/k/a L.A.,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (CR-99-526-WMN)

Argued: October 1, 2004 Decided: April 29, 2005

Before WIDENER and WILKINSON, Circuit Judges, and Robert E. PAYNE,
United States District Judge for the Eastern District of Virginia,
sitting by designation.

Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

ARGUED: Michael Daniel Montemarano, Elkridge, Maryland, for
Appellant. Martin Joseph Clarke, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Thomas M. DiBiagio, United States Attorney,
Charles J. Peters, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Following a jury trial, Lafayette McKoy was convicted of one

count of conspiracy to distribute five or more kilograms of cocaine

hydrochloride and one kilogram or more of heroin, in violation of

21 U.S.C. § 846 and 841(a)(1). Under the Sentencing Guidelines,

McKoy was sentenced, inter alia, to imprisonment for three hundred

and sixty months. McKoy appeals his conviction and sentence on

several grounds.

I.

With McKoy’s conviction, the United States successfully

completed a three-year investigation of a drug trafficking

conspiracy involving nearly twenty defendants. The first

indictment, returned in November 1999, charged four conspirators.

In early 2000, a superceding indictment charged three more

conspirators. Then, in January 2002, after all but one of the

other conspirators (who was then, and remains now, a fugitive) had

entered guilty pleas, a second superceding indictment was returned

charging McKoy with conspiracy to distribute heroin and cocaine

hydrochloride.

Before trial, McKoy moved for dismissal of the second

superceding indictment on the ground that the delay in bringing the

charges had deprived him of the right to speedy trial under the Due

Process Clause of the Fifth Amendment. The district court denied

2
that motion. During jury selection, the United States peremptorily

struck three black jurors. McKoy supposedly made a challenge under

Batson v. Kentucky, 476 U.S. 79 (1986), which the district court

rejected.

At trial, the United States introduced the 2001 grand jury

testimony of co-conspirator James Winkler who was terminally ill

with cancer when he testified, and who died shortly after his grand

jury appearance. The district court overruled McKoy’s objection to

the admission of Winkler’s grand jury testimony as violative of

Federal Rule of Evidence 807 and as a denial of due process. After

McKoy filed his brief on appeal, the Supreme Court of the United

States decided Crawford v. Washington, 541 U.S. 36 (2004). The

United States concedes that it was an error of constitutional

dimension to have admitted Winkler’s testimony, but asserts that

the error was harmless.

McKoy appeals the adverse decisions on those points. Also,

McKoy contends that he was deprived of due process under the Fifth

Amendment by the prosecutor’s prejudicial closing argument.

Finally, relying on Blakely v. Washington, 124 S. Ct. 2531 (2004),

McKoy attacks his sentence as violative of the Sixth Amendment.

For the reasons set forth below, we find no violation of the

right to speedy trial under the Due Process Clause of the Fifth

Amendment, no error in the rejection of the Batson challenge,

harmless error in the admission of Winkler’s grand jury testimony,

3
and no improper argument on the part of the prosecutor.

Accordingly, we affirm the judgment of conviction. However, in

light of the decision of the Supreme Court in United States v.

Booker, 125 S. Ct. 738 (2005) and our decision in United States v.

Hughes, 396 F.3d 374 (4th Cir. 2005), the case is remanded for

resentencing.1

II.

McKoy first contends that the district court erred by denying

his motion to dismiss the second superceding indictment on the

ground that the pre-accusatory delay denied his right to a speedy

trial under the Fifth Amendment. The district court’s findings of

fact with respect to allegations of pre-trial delay are not to be

disturbed unless they are clearly erroneous. See United States v.

Burns, 990 F.2d 1426, 1435 (4th Cir. 1993) (“Whether the Government

has delayed in order to gain [a tactical] advantage . . . is a

question of fact, and questions of fact are the trial court’s

special province.”).

In United States v. Marion, the Supreme Court held that the

Due Process Clause of the Fifth Amendment would require dismissal

of an indictment upon a showing that “pre-indictment delay . . .

caused substantial prejudice to [an accused’s] rights to a fair

1
The decisions in Booker and Hughes, were issued after
arguments were heard on this appeal.

4
trial and that the delay was an intentional device to gain tactical

advantage over the accused.” 404 U.S. 307, 324 (1971). Six years

later, in United States v. Lovasco, 431 U.S. 783, the Supreme Court

made it clear that prejudice caused by pre-trial delay alone does

not warrant dismissal. In Lovasco, the Supreme Court held that,

although a showing of prejudice makes the issue ripe for decision,

courts also must consider the reasons for the delay, and that no

due process violation exists where the delay is attributable to

legitimate investigation of a crime. See id.

In Lovasco, the Court outlined in considerable detail why the

Due Process Clause of the Fifth Amendment is not offended when the

government prosecutes a defendant after an investigative delay

“even if his defense might have been somewhat prejudiced by the

lapse of time [taken for investigation].” United States v.

Lovasco, 431 U.S. at 795. In so doing, the Court explained that:

In our view, investigative delay is fundamentally unlike
delay undertaken by the Government solely ‘to gain
tactical advantage over the accused,” . . . precisely
because investigative delay is not so one-sided. Rather
than deviating from elementary standards of ‘fair play
and decency,’ a prosecutor abides by them if he refuses
to seek indictments until he is completely satisfied that
he should prosecute and will be able promptly to
establish guilt beyond a reasonable doubt. Penalizing
prosecutors who defer action for these reasons would
subordinate the goal of ‘orderly expedition’ to that of
mere speed. . . . This the Due Process Clause does not
require.

Id. at 795-76.

5
 Informed by the decisions in Marion and Lovasco, we have used

a two-part test for determining whether pre-indictment delay

warrants dismissal. Howell v. Barker, 904 F.2d 889, 895 (4th Cir.

1990); see also Jones v. Angelone, 94 F.3d 900 (4th Cir. 1996).

First, the defendant must show that he has suffered “actual

prejudice” from the pre-indictment delay. Prejudice is

demonstrated when the defendant has been “meaningfully impaired in

his ability to defend against the state’s charges to such an extent

that the disposition of the criminal proceeding was likely

affected.” Jones v. Angelone, 94 F.3d at 907. Second, if actual

prejudice is shown, the court then must balance the demonstrated

prejudice against the government’s purported need for the delay.

Howell v. Barker, 904 F.2d at 895.

The record here demonstrates that the United States deferred

prosecution of McKoy until it was satisfied that it promptly could

establish his guilt beyond a reasonable doubt. There is nothing in

the record to indicate that the prosecution of McKoy was delayed to

obtain a tactical advantage. To the contrary, the record

establishes that the prosecutors carefully and thoroughly developed

a case against McKoy by continuing to investigate McKoy’s conduct,

by prosecuting others against whom the government had developed

strong cases, and then by using their evidence to complete the

development of a solid case against McKoy. Thus, the record shows

a legitimate need for the delay.

6
 It is difficult to ascertain what McKoy asserts to be the

prejudice that he suffered as a consequence of the delay. But, it

appears that McKoy claims to have lost the benefit of the testimony

of Winkler, who died two years after the initial indictment but

before McKoy was charged under the second superceding indictment.2

However, McKoy has not shown how Winkler’s testimony would

have aided his defense. That failure was fatal in Lovasco, and it

is fatal here. Further, we have held that:

[w]hen the claimed prejudice is the unavailability of
witnesses, as here, courts have generally required that
the defendant identify the witness he would have called;
demonstrate, with specificity, the expected content of
that witnesses’ testimony; establish to the court’s
satisfaction that he has made serious attempts to locate
the witness; and, finally, show that the information the
witness would have provided was not available from other
sources.

Jones v. Angelone, 94 F.3d at 908. McKoy’s prejudice assertion is

devoid of the requisite specificity. And, because McKoy has not

demonstrated actual prejudice, it is unnecessary to undertake a

balancing analysis. But, as explained above, the balance, if

2
McKoy’s brief identifies eight supposed consequences of the
delay. However, two of the putative consequences are merely that
the delay occurred. Two other asserted consequences are that there
was little or no evidence against McKoy. Two other supposed
consequences were that all the other co-conspirators but one had
entered guilty pleas and the one who had not entered a plea was a
fugitive at large. Consequences (4) and (5) are said to be that
Winkler died before McKoy was indicted and that “therefore, crucial
evidence vital to the defense of the charges against [McKoy[ was
unavailable by [the] time he was obligated to defend himself.
McKoy’s Opening Brief, pp. 15, 16.

7
struck, clearly would fall, under Lovasco, in the prosecution’s

favor.

On this record, we find no violation of the Due Process Clause

of the Fifth Amendment.

III.

McKoy’s next argument is that he was denied the Fifth

Amendment right to have a jury selected without racial

discrimination in the exercise of peremptory challenges. A

district court’s finding respecting whether a peremptory challenge

was based on a discriminatory motive is subject to great deference

and is only reviewed for clear error. Jones v. Plaster, 57 F.3d

417, 421 (4th Cir. 1995).

In Batson v. Kentucky, 476 U.S. 79, 89 (1986), the Supreme

Court of the United States held that “the Equal Protection Clause

forbids the prosecutor to challenge potential jurors solely on

account of their race or on the assumption that black jurors as a

group will be unable to consider the State’s case against a black

defendant.” When announcing this rule, the Supreme Court also

outlined a burden-shifting test to be applied to ascertain whether

the rule had been offended.

First, the party apprehending racial discrimination in the

adversary’s exercise of peremptory challenge must establish a prima

facie case of purposeful discrimination. To make a prima facie

8
case, “the defendant must show that the facts and any other

relevant circumstances raise an inference that the prosecutor used

[peremptory challenges] to exclude veniremen from the petit jury on

account of their race.” Id. Relevant circumstances may include a

pattern of excluding jurors of a particular racial group and the

prosecutor’s questions during voir dire. Id. A district court’s

determination whether a prima facie case has been made is entitled

to “great deference” and will not be disturbed unless clearly

erroneous. Id. at 98.

Assuming that a prima facie case is made, the burden shifts to

the party who exercised the peremptory challenge, here the

prosecutor, to provide a race-neutral explanation. Id. at 96-97.

That “explanation need not be persuasive or even plausible, as

long as it is neutral.” Matthews v. Evatt, 105 F.3d 907, 917 (4th

Cir. 1997). In other words, “the party need offer only a

legitimate reason for exercising the strike, i.e., one that does

not deny equal protection; the reason need not be worthy of belief

or related to the issues to be tried or to the prospective juror’s

ability to provide acceptable service.” Batson, 476 U.S. at 98.

The Supreme Court has made it clear that “unless a discriminatory

intent is inherent in the explanation offered to defend the

peremptory challenge, the reason offered will be race neutral.”

Matthews v. Evatt, 105 F.3d at 917. The district court’s

acceptance of the purported race-neutral reason for the challenge

9
is entitled to substantial deference on appeal and will be

overturned only for clear error. See Jones v. Plaster, 57 F.3d

417, 421 (4th Cir. 1995).

Third, if parts one and two of the test are satisfied, the

burden then reverts to the party opposing the peremptory challenge

to establish that the reason offered was a pretext for racial

discrimination. Id. Like the first two facets of the Batson

test, this decision is reviewed only for clear error. See id.

In cases where the prosecution offers racially neutral reasons

for the proposed challenges, “it is unnecessary to determine

whether a prima facie case was actually demonstrated.” Davis v.

Baltimore Gas & Elec. Co., 160 F.3d 1023 (4th Cir. 1998).

Therefore, if race neutral reasons were offered at trial, the

appellate court may assume that a prima facie showing was made and

proceed directly to examine whether the reasons cited were indeed

race neutral. Hernandez v. New York, 500 U.S. 352, 358-59 (1991).

In this case, there were six black jurors on the venire. The

district court struck one of those six for cause. Thereafter, the

United States used three of its six peremptory challenges to excuse

three of the remaining five black jurors.

At trial, McKoy did not actually make a Batson challenge.

Rather, the issue was raised by the district court which, after

challenges for cause had been decided and peremptory challenges had

been made, called counsel to the bench and announced that the

10
record should reflect that the United States peremptorily had

stricken three of the five black jurors remaining on the venire

after one had been excused for cause. Joint Appendix at 153 (“JA

at __”). The district court said: “So I just wanted you to know

that before we called them in case you had any comment about it.”

JA at 153. McKoy’s counsel then responded as follows:

Well, my initial observation of the whole panel is that
there was a sparsity of African American participants in
the general panel, and I would like to know the
government’s reason for striking the few black people
that were in the panel. The three, I know, two survived,
apparently.

Id. at 154.

The United States objected “to having to respond” because a

prima facie case of discrimination had not been established. Id.

The district court made no ruling on the prosecutor’s objection,

and the United States, stating that it had “preserved the record”

(presumably by its objection), then agreed to respond as to Jurors

176, 125 and 101, the three black jurors who were peremptorily

removed. Id.

Before addressing the merits of the issue, we note that a

defendant does not animate the obligation of the United States to

provide reasons for its peremptory challenges merely by expressing

a desire to hear those reasons. See Matthews v. Evatt, 105 F.3d

907, 917 (4th Cir. 1997)(defining the necessity for, and the

sufficiency of, a prima facie case). However, because the district

court raised the issue and then did not sustain the objection of

11
the United States, we will proceed as if the district court had

found that McKoy had made a prima facie case.3

The United States justified its challenge of Juror No. 176 on

the ground that he could not be fair because two of his brothers

had been convicted of selling drugs and were serving terms of

incarceration. The juror also thought that one brother had been

unfairly treated. JA at 155. The United States justified its

challenge of Juror No. 125 on the ground that he would be

sympathetic to the defense because his stepfather had served thirty

years in prison for a murder conviction and because the juror lived

near the prison where several prosecution witnesses were

incarcerated. Id. at 156. The United States explained its

challenge of Juror No. 101 on the ground that he seemed emotionally

distraught because of the recent death of two nieces and because,

as a person with a heavy Jamaican accent, the juror would have

difficulty understanding some of the prosecution’s witnesses who

(at trial and on surveillance tapes) spoke English with a strong

Spanish accent. Id. at 157-58.

The district court held that the United States had offered

racially neutral reasons for its challenges to Juror Nos. 176, 125

and 101.4 We find no error in the district court’s decision.

3
In so doing, we do not conclude that the record here
establishes a prima facie case of discrimination under Batson.
4
McKoy made no showing that the proffered race neutral reason
was a pretext for a racially motivated challenge. Matthews, 105
F.3d at 917.
12
 IV.

Before trial, McKoy moved to preclude the United States from

admitting into evidence the testimony that James Winkler, the

deceased co-conspirator, had given to the grand jury shortly before

he died. The transcript of the testimony shows that Winkler and

the prosecution were aware that Winkler was terminally ill when he

testified before the grand jury. Winkler testified at length about

the conspiracy and, to a lesser extent, about McKoy’s role in it.

The transcript was read at trial.

When McKoy’s motion was considered by the district court and

when McKoy filed his opening brief on appeal, the controlling law

was supplied by Ohio v. Roberts, 448 U.S. 56 (1980) and United

States v. McHan, 101 F.3d 1027 (4th Cir. 1996). However, before

the United States filed its brief in this appeal, the Supreme Court

decided Crawford v. Washington, in perspective of which the United

States rightly has conceded that admission of Winkler’s grand jury

testimony was constitutional error. However, the United States

asserts that the error was harmless. To that issue, we now turn.

Recognizing that our judicial system is susceptible to

mistakes committed by “fallible human beings,” “[a]ppellate courts

long ago rejected the notion that reversal is necessary for any

error committed by a trial court.” United States v. Blevins, 960

F.2d 1252, 1261 (4th Cir. 1992) (citing Rose v. Clark, 478 U.S.

570, 579 (1986)). That, in turn, has led to the fundamental

13
precept that “‘[a] defendant is entitled to a fair trial, but not

a perfect one.’” United States v. Blevins, 960 F.2d at 1261

(quoting Latwak v. United States, 344 U.S. 604, 619 (1953) and

citing Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)).

Until the Supreme Court’s decision in Chapman v. California,

386 U.S. 18 (1967), it was widely considered that constitutional

violations which occurred at trial could never be harmless error.

Wayne R. LaFave et al., Criminal Procedure vol. 5, § 27.6(b), 944

(2d ed., West Group 1999). Although, in Chapman, the Supreme Court

rejected the notion that all constitutional errors at trial

necessitated automatic reversal, the Court also held that

constitutional errors should be measured against a higher level of

scrutiny than non-constitutional errors. Chapman, 386 U.S. at 23.

Recognizing that non-constitutional errors can be treated as

harmless if there is no “reasonable possibility that the evidence

complained of might have contributed to the conviction,” the Court

in Chapman announced that constitutional errors are harmless only

if the reviewing court is “able to declare a belief that [the

error] was harmless beyond a reasonable doubt.” Id. (quoting Fahy

v. Connecticut, 375 U.S. 85, 86-87 (1963)) (emphasis added).

Beginning with Chapman and continuing in a line of decisions

thereafter, the Supreme Court has formulated a two-part analysis

for assessing the import of constitutional errors committed by

trial courts. Under the first facet of the Chapman test, the

14
reviewing court determines whether the error is in a class of

violations subject to the harmless error rule (“trial errors”) or,

instead, is within a rather narrow category of errors that require

automatic reversal (“structural errors”).5 Wayne R. LaFave et al.,

Criminal Procedure vol. 5, § 27.6(b), 945-46 (2d ed., West Group

1999).

Because a “trial error” occurs during the presentation of the

case to the jury, the error “may be quantitatively assessed in the

context of other evidence presented in order to determine whether

its admission was harmless beyond a reasonable doubt.” Arizona v.

Fulminante, 111 S. Ct. 1246, 1264 (1991) (emphasis added). That

determination, of course, is the second component of the Chapman

test.

Over a dozen constitutional errors have been deemed trial

errors that are subject to review under the second part of the

Chapman analysis:

(1) Improper admission of an involuntary confession; (2)
overbroad jury instructions at the sentencing stage of a
criminal case; (3) improper admission of evidence at the
sentencing stage of a criminal case; (4) jury
instructions containing erroneous conclusive or

5
Structural errors “affect ‘the entire conduct of the trial
from beginning to end, such that any attempt by a reviewing court
to isolate the impact of the error would be fruitless.’” United
States v. Blevins, 960 F.2d 1252, 1261 (4th Cir. 1992)(quoting
Fulminante, 111 S. Ct. at 1254). Examples of structural errors
include bias on the part of the presiding judge, the total
deprivation of the right to counsel, and the right to self-
representation. Fulminante, 111 S. Ct. at 1254 (collecting cases).

15
 rebuttable presumptions; (5) erroneous exclusion of a
defendant’s testimony regarding the circumstances of his
confession; (6) improper restriction on a defendant’s
right to cross-examine a witness for bias; (7) denial of
a defendant’s right to be present at trial; (8) improper
comment on a defendant’s silence at trial; (9) improper
prohibition on the provision of a lesser included offense
instruction in a capital case; (10) failure to instruct
the jury on the presumption of innocence; (11) erroneous
admission of an out-of-court statement of a non-
testifying co-defendant; (12) improper admission of a
confession made to an undercover officer; (13) admission
of evidence obtained in violation of the Fourth
Amendment; and (14) improper denial of counsel at a
preliminary hearing.

Wayne R. LaFave et al., Criminal Procedure vol. 5, § 27.6(b), 948-

49 (2d ed., West Group 1999)(emphasis added). In obvious

recognition of the fact that the erroneous admission of Winkler’s

grand jury testimony came during the presentation of evidence, and,

thus, that “the impact of the error can be evaluated in light of

the evidence which was properly admitted,” United States v.

Blevins, 960 F.2d at 1262, McKoy rightly does not argue that a

structural error analysis is called for here.

To determine whether the admission of the grand jury testimony

was harmless beyond a reasonable doubt, we review the “trial record

as a whole,” United States v. Hastings, 461 U.S. 499, 509 (1986),

and ask “whether it is clear beyond a reasonable doubt that the

jury would have returned [a guilty] verdict” against McKoy even if

Winkler’s testimony had not been introduced. United States v.

Blevins, 960 F.2d at 1262. This determination requires “a

quantitative assessment of the likely impact of the error measured

16
against the other evidence presented at trial.” Id. at 1263. It

also involves a qualitative assessment of the proof such as whether

the erroneously admitted evidence was cumulative of other evidence

that establishes guilt beyond a reasonable doubt. See, e.g., Brown

v. United States, 411 U.S. 223, 231 (1973) (holding that

erroneously admitted statements of the defendants constituted

harmless error because that evidence was merely cumulative of other

evidence presented at trial). Applying these precepts, we will

assess Winkler’s grand jury testimony as it pertained to McKoy’s

participation in the drug conspiracy against the other trial

evidence of his participation.6

At the grand jury, Winkler testified that he sold cocaine and

heroin out of a stash-house apartment in Baltimore, Maryland. JA

at 504-506. Winkler approximated that he and his associate, Julio

Cabrera-Mena, distributed two to three kilograms of heroin per week

out of the apartment. Id. at 509. Winkler identified McKoy as an

individual to whom, among others, Winkler sold heroin at that

location. Winkler also said that he sold heroin to McKoy’s friend,

an individual known to Winkler as “Big E.” Id. at 511-13. Winkler

particularized the transactional mode by explaining that, when Big

E and McKoy came to the apartment to purchase heroin, Big E usually

6
There is no doubt that the properly admitted evidence
established the existence of a conspiracy beyond a reasonable
doubt. Thus, Winkler’s testimony on that point is harmless beyond
a reasonable doubt because it is cumulative.

17
came into the apartment to make the purchase, while McKoy waited in

the car. Id. The exception to this pattern occurred when, Julio

Cabrera-Mena, who was the connection to the New York supplier, was

present. Winkler also testified that, on six or seven occasions,

he accepted money from McKoy (delivered by Big E) to give to

Cabrera-Mena who purchased heroin from a supplier in New York. Id.

at 531-33. According to Winkler, McKoy received heroin from

Cabrera-Mena approximately once a week. Id. at 544.

Mindful of what Winkler said, we now must assess the rest of

the trial record to determine the effect of Winkler’s grand jury

testimony on the guilty verdict returned by the jury that heard and

considered this tainted evidence. In so doing, we note that no

less than eight cooperating witnesses testified about McKoy’s role

in the cocaine and heroin conspiracy. Five of these cooperators

also were named as co-conspirators under the original and

superceding indictments in this case.

The first of these cooperating witnesses, Julio Zorilla, who

knew McKoy by the name “LA,” testified that he delivered various

quantities of cocaine and heroin to McKoy on seven occasions at the

request of his employer, Julio Cabrera Mena. Id. at 378-99.

Zorilla testified that these deliveries took place at McKoy’s

townhouse apartment on Clyburn Avenue. In describing the various

quantities of heroin and cocaine that he delivered to McKoy for

Cabrera-Mena, Zorilla testified that:

18
 Sometimes it would change. Sometime [sic] 18 ounce of
cocaine, sometimes 30 gram, 40 gram of heroin. Sometime
a whole key of cocaine, sometime a half key of cocaine.

Id. at 382.

In his brief, McKoy seeks to negate Zorilla’s testimony by

arguing that this witness did not know McKoy. Reply Brief of

Appellant at 6. However, nothing in the record supports this

contention and, indeed, it is undermined by McKoy’s own admission

to FBI Special Agent Nick Yiannos (serving under cover) that McKoy

had dealt in drugs with Zorilla “a long time ago.” Amended First

Supplemental Joint Appendix at 127. Further the United States

introduced transcripts of several telephone conversations between

Zorilla and other co-conspirators, during which Zorilla discussed

McKoy’s role in the drug trade. See id. at 254-55. In addition

to Zorilla, another of the Cabrera’s drug couriers, Juan Melendez,

testified that he also delivered heroin to McKoy. Id. at 185-88.

In addition to Zorilla and Melendez, both of whom testified

that they supplied cocaine and heroin to McKoy, the prosecution

offered evidence from two low-level street dealers, James McKnight

and David Curtis, who testified that they distributed cocaine and

heroin on McKoy’s behalf. Curtis testified that he witnessed McKoy

give two individuals a bag, the contents of which Curtis later

discovered included ten “fingers” of heroin. Id. at 168. McKnight

testified about his relationship with McKoy as follows:

19
 Q. Were you performing any other duties for Mr. McKoy?

A. Yes.

Q. All right. What were they?

A. I was the delivery person and pick-up person.

Q. All right. Where did you deliver to?

A. To the apartment.

Q. Where would you – all right. Deliver, what would
you deliver to the apartment?

A. Heroin and Cocaine.

Id. at 015. In addition to making deliveries, McKnight testified

that he sold cocaine and heroin that he had obtained from McKoy’s

apartment every one to two days. JA at 341-45. Further, McKnight

testified that McKoy taught him how to dilute pure heroin for

street distribution. Having acquired that knowledge from McKoy,

McKnight began receiving heroin and cocaine from McKoy so that

McKnight could supply his own street distribution operation. Id.

McKoy tries to undermine the effect of this witness by

characterizing him as a “veteran level drug dealer.” That is no

doubt true, but McKoy’s relationship with McKnight was established

by transcripts of tape-recorded conversations between Zorilla and

Julio Cabrera-Mena introduced at trial. During one of these

conversations, Cabrera-Mena characterized McKnight as “LA’s”

[McKoy’s] friend. Id. at 255. Further, during this conversation,

Cabrera-Mena outlined how McKoy supplied McKnight with illegal

drugs. Id. at 256. In short, notwithstanding McKnight’s “veteran

20
level drug dealer” status, there was ample independent

corroborating evidence presented at trial to establish the

relationship between McKnight and McKoy.

The United States also introduced McKoy’s own statements about

his drug-related activities. Those admissions were elicited during

the course of several conversations between McKoy and FBI Special

Agent Yiannos, who posed as a drug paraphernalia salesman. Yiannos

recorded his conversations with McKoy and the tapes were played at

trial. During one of those conversations, McKoy explained the

extent of his drug dealing to Yiannos:

I got some dudes . . . I got some dudes, that they be .
. . they be, uhm . . . they be, they be going around and
buying coke and the rock, right, and whatnot. And you
know they may like wanna buy a lot of it, uhm, you know.
But the other thing is my thing. I don’t ... you know.
I deal with the, with the, with the heroin. That’s all.
You know.

Id. at 285 (emphasis added). McKoy then expressed interest in

buying heroin from one of Yiannos’ contacts. Id. at 287-88.

McKoy addresses this evidence by arguing that Yannios was

unable to “inveigle an admission from him.” That assertion ignores

the fact that, in the conversation, McKoy clearly admitted that he

“deals heroin,” and the jury reasonably could have construed the

first part of McKoy’s comments to mean that others dealt cocaine

powder and cocaine base for him. And, indeed, the testimony given

by the co-conspirators and the cooperating witnesses, as outlined

21
above, fully corroborated both that conclusion and McKoy’s

admission respecting the heroin dealing.

Finally, the evidence presented at trial included a chart that

outlined McKoy’s communications with his co-conspirators.

Specifically, the United States demonstrated that, during an eight-

month period, from April 1999 to January 2000, McKoy communicated

with co-conspirators James McKnight, Eric Jenkins, Julio Cabrera-

Mena, Juan Melendez, and James Winkler, by telephone, cell phone,

and pager, a total of 1,682 times. Supplemental Joint Appendix at

248-53.

McKoy’s principal argument that Winkler’s grand jury testimony

was not harmless error is that “Winkler’s testimony provided the

“necessary link between circumstantial evidence and unbelievable

criminals.” Reply Brief of Appellant at 5-6. The record,

considered as a whole, discloses that, while Winkler’s testimony

does link McKoy with his co-conspirators, it is not, as McKoy

urges, the only link. The record is replete with other first hand

accounts of McKoy buying and selling cocaine and heroin. Further,

the record contains McKoy’s own admission that he is a heroin

dealer. Finally, the United States presented, and the jury

considered, an impressive array of circumstantial evidence, such as

telephone records, tax returns, and drug-tally sheets, all of which

supported what the co-conspirators, the cooperators, and McKoy

himself had to say. In short, Winkler’s testimony is largely

22
cumulative of the abundant quantum of other evidence presented at

trial that establishes, beyond a reasonable doubt, that McKoy was

a member of the conspiracy, the existence of which also was

established beyond a reasonable doubt.

V.

Next, McKoy contends that his conviction must be overturned

because of allegedly improper remarks made by the prosecutor in

closing argument. We review a district court’s factual findings on

prosecutorial misconduct for clear error. See United States v.

McDonald, 61 F.3d 248, 253 (4th Cir. 1995).

First, McKoy argues that the prosecutor impermissibly referred

to the fact that McKoy did not testify, thereby violating the Fifth

Amendment. See Brief of Appellant at 23. McKoy preserved this

issue by objecting to the argument and moving for a mistrial. The

district court denied McKoy’s motion for a mistrial, decided to

give limiting instructions instead, and made the following

findings:

With respect - I’m going to deny your motion with
respect to the first point. I’m going to give the jury
instructions, but I gave them instructions at the outset
and I’m going to repeat it, that the defense has no
burden to produce any evidence whatever. It’s entirely
on the government. And also the jury will be told that
anything that they heard from counsel with respect to
legal principles they have to give deference to what I
tell them. It’s not what counsel tells them. So any
differences they go by what I tell them.

23
JA at 493-94. We find no error in the district court’s handling of

this matter.

The Constitution clearly “forbids either comment by the

prosecution on the accused’s silence or instructions by the court

that such silence is evidence of guilt.” Bates v. Lee, 308 F.3d

411, 420 (4th Cir. 2002)(quoting Griffin v. California, 380 U.S.

609, 615 (1965)). Improper comment on the defendant’s failure to

testify occurs when “the language used [is] manifestly intended to

be, or . . . [is] of such character that the jury would naturally

and necessarily take it to be a comment on the failure of the

defendant to testify.” Id. (quoting United States v. Anderson, 481

F.2d 685, 701 (4th Cir. 1973)).

Specifically, McKoy objects to the following argument by the

prosecutor:

And remember one thing, ladies and gentlemen, I
think this is important. The defense is provided with
all these tapes that you heard, every one of them. We
gave the excerpts of the important parts of defense. If
there was an issue, they wanted to bring it up, they
could have certainly cross-examined, could have done it.
We had the issue with the Spanish tapes. In fact,
there was an issue as to the translation. What’s this
translation? No, that isn’t the proper translation, that
could be brought up. And you didn’t hear a word about
that.

JA at 480. This rebuttal argument was made in response to the

assertion by McKoy’s counsel that the some of the tapes offered by

the United States were improperly translated. In arguing that the

translation was accurate, the prosecutor made the point that McKoy

24
could have cross-examined the United States’ witness if McKoy had

wanted to challenge the veracity of the translation. Noting the

absence of any such cross-examination, the prosecutor argued that

the tapes were, in fact, accurately interpreted and, thus, should

be credited by the jury. See Brief of Appellee at 33-34.

We are of the view that, in rebutting McKoy’s unfounded

argument that the translations were dubious, it was permissible for

the United States to point out that McKoy had failed to challenge

the translation when he had the opportunity to do so: on cross-

examination. Except by the most strained reading, the statement of

which McKoy complains cannot be construed to be a comment on his

failure to testify. Rather, the statement simply asserts that

McKoy did not take the opportunity to challenge the translation.

Hence, the statement is not a comment on McKoy’s failure to

testify, and the argument was not improper. The district court

properly denied the motion for mistrial on that ground and issued

the proper, albeit unnecessary, limiting instruction.

Second, McKoy contends that the United States made an improper

argument by using inflammatory language. Specifically, McKoy takes

issue with the following argument:

Because what happened during that time, ladies and
gentlemen, is that he and his crew, to use his terms,
spread poison of cocaine and heroin, and I don’t use that
lightly.

JA at 491 (emphasis added). McKoy objected to the characterization

of the drugs that he was alleged to have conspired to distribute,

25
cocaine and heroin, as “poison,” and moved for a mistrial which the

district court denied.

With respect to McKoy’s contention that the United States’

characterization of heroin and cocaine as “poison” constituted

improper argument, the district court found that:

The other one with respect to poison, it’s argument.
There is a somewhat fine line as to where an argument can
become overly inflammatory. In my view, Mr. Peters
didn’t cross it, so motion denied.

JA at 494.

It is well-settled that prosecutors enjoy wide latitude in

arguing to a jury, because “the adversary system permits the

prosecutor ‘to prosecute with earnestness and vigor.’” Bates, 308

F.3d at 422 (quoting United States v. Young, 470 U.S. 1, 7 (1985)).

The scope of this Court’s review is “limited to whether the

comments rendered the proceeding so fundamentally unfair as to

constitute a denial of due process.” Id. (quoting Donnelly v.

DeChristoforo, 416 U.S. 637, 642 (1974)). In applying this

standard, we examine “the nature of the comments, the nature and

quantum of the evidence before the jury, the arguments of opposing

counsel, the judge’s charge, and whether the errors were isolated

or repeated.” Boyd v. French, 147 F.3d 319, 329 (4th Cir. 1998).

The evidence presented at trial clearly demonstrated that

McKoy had engaged in a conspiracy to distribute cocaine and heroin.

We agree with the district court that the United States’ “poison”

characterization was within the proper bounds of closing argument.

26
Even if that characterization of heroin and cocaine was improper

(which it was not), any potential prejudice that resulted was

mitigated by the judge’s charge to the jury about the role and

weight of closing arguments and the overwhelming evidence of guilt

presented at trial. We find no error in the decision of the

district court.

VI.

Lastly, McKoy argues that, in light of the Supreme Court’s

decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), his

sentence is unconstitutional. McKoy contends that the maximum

offense level warranted by the jury’s verdict was 32. McKoy argues

that his offense level was unconstitutionally enhanced to a level

38 based on the district court’s findings of drug weight and

McKoy’s role in the offense.

In United States v. Booker, 125 S. Ct. 738 (2005), the Supreme

Court held that the Sixth Amendment is violated when a district

court imposes a sentence that is greater than the maximum sentence

authorized by the facts found by the jury or admitted to by the

defendant as part of a guilty plea. The Court held that certain

provisions of the Sentencing Reform Act of 1984, 18 U.S.C. § 3551

et seq. violated the Sixth Amendment. In particular, the Supreme

Court found offensive § 3553(b)(1), which mandated that the

district courts apply the Federal Sentencing Guidelines to impose

27
a sentence partly on the basis of post-conviction factual findings.

Finding no meaningful distinction between the binding nature of the

federal guidelines and the state guidelines at issue in Blakely,

the Court held that the federal guidelines also violated the Sixth

Amendment.

However, the Court severed and excised § 3553(b)(1) - the

portion of the Sentencing Reform Act that made guideline sentences

mandatory.7 By removing the mandatory provision from the statute,

the Court rendered the Guidelines “effectively advisory.”

Thereafter, the Supreme Court concluded that, although the district

courts would still have to consider guideline sentencing ranges,

the courts would have the authority “to tailor the sentence” in

light of the factors enumerated in § 3553(a).

In United States v. Hughes, 2005 U.S. App. LEXIS 4331, *___

(4th Cir. March 16, 2005), we held that, even though district

courts are no longer bound by the guidelines, district courts must

take them into account, and we set forth the appropriate framework

for considering the guidelines as follows:

Consistent with the remedial scheme set forth in Booker,
a district court shall first calculate (after making the
appropriate findings of fact) the range prescribed by the
guidelines. Then, the court shall consider that range as
well as other relevant factors set forth in the
guidelines as well as other relevant factors set forth in
§ 3553(a) before imposing sentence. If the court imposes

7
In addition, the Court excised § 3742(e), which provided for
automatic de novo review in cases where the district courts imposed
a sentence outside of the applicable guidelines range.

28
 a sentence outside the guideline range, it should explain
its reasons for doing so.

Id. at *10.

The sentence imposed on McKoy is not valid under the decisions

in Booker and Hughes, neither of which was operative when the

sentence was imposed. Therefore, this case will be remanded for

sentencing in accord with those decisions.8

For the foregoing reasons, the judgment of conviction is

affirmed, the sentence is vacated, and the case is remanded for

sentencing with instructions.

AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

8
This disposition makes it unnecessary to consider McKoy’s
Motion For Leave To File Supplemental Brief And For Re-Argument and
his Further Motion For Leave To File A Second Supplemental Brief.
Both motions will be denied as moot and without prejudice to
asserting the points therein made to the District Court on
resentencing.

29